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R2023-310 2023-12-18RESOLUTION NO. R2023-310 A Resolution of the City Council of the City of Pearland, Texas, awarding a Construction Manager at Risk contract Hillhouse Road Annex Phase II Project to Teal Construction Company in the amount of $30,000.00 for pre- construction services, $1,145,150.00 for General Conditions and authorizing the payment of 3.00% for profit and overhead based on the Guaranteed Maximum Price which shall be subject to future City Council approval. BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PEARLAND, TEXAS: Section 1. That the City Council hereby awards a Construction Manager at Risk contract to Teal Construction Company in the amount of $30,000.00.00 for pre-construction services, $1,145,150.00 for General Conditions and authorizing the payment of 3.00% for profit and overhead based on the Guaranteed Maximum Price which shall be subject to future City Council approval. Section 2. The City Manager or his designee is hereby authorized to execute a Construction Manager at Risk contract for the Hillhouse Road Annex Phase II Project. PASSED, APPROVED and ADOPTED this the 18th day of December, A.D., 2023. _____________________________ J.KEVIN COLE MAYOR ATTEST: _____________________________ FRANCES AGUILAR, TRMC, MMC CITY SECRETARY APPROVED AS TO FORM: ________________________________ DARRIN M. COKER CITY ATTORNEY DocuSign Envelope ID: 17BC642A-7070-4646-8D8B-B9C5E63D13A3 I CITY OF PEARLAND STANDARD FORM OF AGREEMENT BETWEEN CITY AND CONSTRUCTION MANAGER AT RISK This Agreement is entered into by and between the City of Pearland, a Texas home-rule municipal corporation (the"City" or"Owner")and real Construction Company a Texas corporation (the "Construction Manager" or"Contractor") for the construction of City of Pearland, Hillhouse Road Annex Phase II Project# FA2106 SECTION 1 GENERAL PROVISIONS 1 1 Relationship of the Parties. 1 1 1 The Construction Manager accepts the relationship of trust and confidence established with the City by this Agreement, and covenants with the City to furnish the Construction Manager's reasonable skill and judgment and to cooperate with the Architect in furthering the interests of the City The Construction Manager shall furnish construction administration and management services and use the Construction Manager's best efforts to perform the Project in an expeditious and economical manner consistent with the interests of the City The City shall endeavor to promote harmony and cooperation among the City, Architect, Construction Manager and other persons or entities employed by the City for the Project. 1.2 General Conditions. 1.2.1 Basic Definitions 121.1 Addenda. Addenda are written or graphic instruments issued prior to the execution of the Contract, which modify or interpret the proposal documents, including Drawings and Specifications, by additions, deletion, clarification or corrections. Addenda will become part of the Contract Documents when the Agreement is executed. 1212 Approved. Approved Equal and Approved Equivalent, or Equal relate to the substitution of materials, equipment or procedure approved in writing by the Architect prior to receipt of proposal's. The substitution procedure process to be followed prior to receipt of competitive sealed proposals is described in the instruction to proposers. 1213 Calendar Day A "calendar day"is any day of the week or Month or year,no days being excepted. Unless otherwise expressly provided, all references to"day(s)"shall mean Calendar Day(s) 1214 City / City Representative. Whenever the word "City" is used, it shall mean and be understood as referring to the City of Pearland, Texas. The word "Owner" shall refer to the same entity and may be used interchangeably Whenever the words "City's Representative" or "Representative" are used, it shall mean and be understood as referring to the City Project Manager or his delegate, who shall act as the City's agent. The City's Representative may inspect and issue 1 instructions but shall not directly supervise the Contractor The City's inspector has authority to reject the Work for failure to comply with the Contract Documents and/or applicable laws. 1215 City Project Management Software. As used herein describes the City's project management software used to enhance communications between the project team members. All product submittals, RFI's, RFPs, plan sheet changes, plans and specs are held and available to all team members within this web-based software All payment applications are made and approved within the software All team members will be given access and will use this software platform for project document transmittals 121.6 Contract Definitions: The term "Contract Documents" shall mean those documents listed in Paragraph 1.3 The Contract Documents form the Contract for Construction. The Contract represents the entire and integrated agreement between the parties hereto and supersedes prior negotiations, representations or agreements, either written or oral The Contract may be amended or modified only by a written Modification. The Contract Documents shall not be construed to create a contractual relationship of any kind (1) between the Architect and Contractor, (2) between the City and a Subcontractor or Sub-subcontractor, (3)between the City and Architect or(4)between any persons or entities other than the City and Contractor The Architect shall be entitled,however, to performance and enforcement of obligations of the Contractor under the Contract intended to facilitate performance of the Architect's duties 121.7 Contractor Whenever the word "Contractor" is used, it shall mean the person(s), partnership, or corporation who has agreed to perform the work embraced in this Agreement and the other Contract Documents, specifically it shall mean the Construction Manager 121.8 Contract Time. The period of time which is established in the Contract Documents for Substantial Completion of the Work. This period of time shall be accounted for in Calendar Days, as defined above, and is not subject to adjustment or extension without the written agreement of the City The following definitions shall apply to Contract Time calculations a. Work Day• As used herein, a "Work Day" is defined as any Monday through Friday, not a legal holiday, and any Saturday or Sunday specifically approved by the OWNER, in which the CONTRACTOR can perform six or more hours of work per the current construction schedule. CONTRACTOR agrees to request specific approval from the Construction Manager or Owner, in advance,to perform work on Saturdays or Sundays and in so doing agrees to pay all charges and costs for Inspection and or Construction Management services required during the performance of any such approved work. b Rain Day• As used herein, is defined as any WORK DAY during which weather related conditions prevent the CONTRACTOR from performing four(4)or more consecutive hours of work on critical path items as identified in the current construction schedule CONTRACTOR shall record Rain Days on the Pay Application each month for the review and possible 2 approval by the OWNER. The approved Rain Day is then added to the Contract Time. c IMPACT DAY: As used herein, is a day that is added to the CONTRACT TIME by the OWNER by Change Order to extend the Contract Time by one full Work Day Impact Days, once approved by the OWNER, shall extend the Contract Time on a one-to-one basis to replace a Work Day lost to conditions that prevented the CONTRACTOR from performing four (4) or more consecutive hours of work on critical path items Impact Days are added to the Contract Time by Change Order only at the end of the work and then only if, in the opinion of the OWNER, a time extension is warranted due to delays beyond the control of the Contractor and required to complete the work within the Contract Time 1219 Drawings. The Drawings are the graphic and pictorial portions of the Contract Documents showing the design, location and dimensions of the Work, generally including plans, elevations, sections, details,schedules and diagrams 121.10 Extra Work.The term"Extra Work"shall mean and include work that is not covered or contemplated by the Contract Documents but that may be required by the City's Representative and approved by the City in writing prior to the work being done by the Contractor 121.11 Final Completion The term "Final Completion" shall mean that all the work has been completed, all final punch list items have been inspected and satisfactorily completed, all payments to been submitted, and all closeout documents have been executed and approved by the City 121.12 Interpretation of Phrases Whenever the words "directed", "permitted", "designated", "required", "considered necessary", "prescribed", or words of like import are used, it is understood that the direction, requirement, permission, order, designation, or prescription of the City's Representative is intended. Similarly, the words "approved", "acceptable", "satisfactory", or words of like import shall mean approved by, accepted by, or satisfactory to the City's Representative In the interest of brevity the Contract Documents may omit modifying words such as "all" or"any" and articles such as "the" and "an", but the fact that a modifier or an article is absent from one statement and appears in another is not intended to affect the interpretation of either statement. 121.13 Nonconforming work. The term "nonconforming work" shall mean work or any part thereof that is rejected by the City's Representative as not conforming with the ContractDocuments. 121.14 Notice to Proceed. A notice that may be given by the Owner to the Contractor that directs the Contractor to start the Work. 121.15 Partial Substantial Completion Designation of Partial substantial Completion may be provided on components of the Work that must be placed into service prior to the completion of the entire Work. The contractor's One Year Warranty 3 period for these items shall begin on the date of Partial Substantial Completion as designated by the Architect. The Architect shall determine and make all such designations. No partial substantial completion will be provided for facility projects where a certificate of occupancy is required. 121.16 Parties The "parties" are the City and the Contractor 121.17 Project. The term "Project" shall mean and include all that is required to obtain a final product that is acceptable to the City The term"work" shall have like meaning. The Project is the total construction of which the Work performed under the Contract Documents may be the whole or a part and which may include construction by the City or by separate contractors. 121.18 Punch List. A comprehensive list prepared by the City prior to Substantial Completion to establish all items to be completed or corrected, this list may be supplemented by the Architect or the City 121.19 Specifications.The Specifications are that portion of the Contract Documents consisting of the written requirements for materials, equipment, systems, standards and workmanship for the Work,and performance of related services Organization of the Specifications into divisions, sections and articles, and arrangement of drawings shall not control the Contractor in dividing the Work among Subcontractors or in establishing the extent of Work to be performed by any trade 12120 Subcontractor.The term"subcontractor"shall mean and include only those hired by and having a direct contact with Contractor for performance of work on the Project. The City shall have no responsibility to any subcontractor employed by a Contractor for performance of work on the Project, and all subcontractors shall look exclusively to the Contractor for any payments due 12121 Substantial Completion. The term "Substantially Completed" means that in the sole discretion of the City's Representative, the Project, including all systems and improvements, is in a condition to serve its intended purpose but still may require minor miscellaneous work and adjustment. Final payment of the Agreement Price, including retainage, however, shall be withheld until Final Completion and acceptance of the work by the City Acceptance by the City shall not impair or waive any warranty obligation of Contractor For a facility project that can be occupied, the Substantial Completion date will be directly tied to the issue date of the certificate of occupancy 12122 Work. The term "Work" means the construction and services required by the Contract Documents, whether completed or partially completed, and includes all other labor, materials, equipment and services provided or to be provided by the Contractor to fulfill the Contractor's obligations. The Work may constitute the whole or a part of the Project. The Work includes all labor, parts, supplies, skill, supervision, transportation, services, and other facilities and things necessary,proper or incidental to the carrying out and completion of the terms of the Contract Documents and all other items of cost or value needed to produce, construct and fully complete the Work identified by the Contract Documents. 4 12.123 Unless otherwise stated in the Contract Documents, words which have well-known technical or construction industry meanings are used in the Contract Documents in accordance with such recognized meanings 1.3 Contract Documents. 1.3 1 The Contract Documents and their priority shall be as follows 13.1.1 This signed Agreement 13.12 Addendum to this Agreement 13.13 Special Conditions 13.14 Technical specifications 13.15 Drawings 13.1.6 Instructions to Bidders and any other notices to Bidders or Contractor 13.1.7 Performance bond,Payment bonds,Bid bonds and Special bonds 13.1.8 Contractor's Proposal 1.3.2 Where applicable, the Contractor will be furnished one (1) CD of plans, drawings, specifications, and related Contract Documents for its use during construction. Plans and specifications provided for use during construction shall be furnished directly to the Contractor only 1.3.3 The Contractor shall distribute copies of the plans and specifications to suppliers and subcontractors as necessary The Contractor shall keep one (1) copy of the plans and specifications accessible at the work site with the latest revisions noted thereon. For proper execution of the work contemplated by this Agreement. 1.3 4 All drawings, specifications, and copies thereof furnished by the City shall not be re-used on other work,and with the exception of one(1)copy of the signed Contract Documents, all documents, including sets of the plans and specifications and "as built" drawings, are to be returned to the City on request at the completion of the work. All Contract Documents, models, mockups, or other representations are the property of the City In the event of inconsistencies within or between parts of the Contract Documents, the Contractor shall (1) provide the better quality or greater quantity of Work, or (2) comply with the more stnngent requirement, either or both in accordance with the City's interpretation. 1.4 Owner 5 1 4 1 The Owner (or City) is the person or entity identified as such in the Agreement and is referred to throughout the Contract Documents as if singular in number The term "Owner" means the City of Pearland or the City's authorized representative The terms "Owner"and "City"may be used interchangeably throughout this Agreement. 1.4.2 The presence of the City or Architect at the Work site does not imply acceptance or approval of Work. 1 4.3 Information And Services Required Of The Owner 143.1 Information or services reasonably necessary for the Work and under the City's control shall be furnished by the City with reasonable promptness where requested in writing by the Contractor In any instance where information or services from the City or Architect is required, Contractor shall promptly notify the Architect in writing, with a copy to the City, of the particular need. Absent such notification, any Claim based upon lack of such information or services shall be waived. 1 4 4 Owner's Right to Stop the Work. 1.44.1 If the Contractor fails to correct Work which is not in accordance with the requirements of the Contract Documents as required by Paragraph 1 14.2 or persistently fails to carry out Work in accordance with the Contract Documents, the City may issue a written order to the Contractor to stop the Work, or any portion thereof, until the cause for such order has been eliminated, however, the right of the City to stop the Work shall not give rise to a duty on the part of the City to exercise this right for the benefit of the Contractor or any other person or entity 1 4 5 Owner's Right to Carry Out the Work. 145.1 If the Contractor defaults or neglects to carry out the Work in accordance with the Contract Documents and fails within a seven-day period after receipt of written notice from the City to commence and continue correction of such default or neglect with diligence and promptness,the City may,without prejudice to other remedies the City may have,correct such deficiencies In such case an appropriate Change Order shall be issued deducting from payments then or thereafter due the Contractor the cost of correcting such deficiencies, including compensation for the Architect's additional services made necessary by such default, neglect or failure If payments then or thereafter due the Contractor are not sufficient to cover such amounts, the Contractor shall pay the difference to the City 1452 After the Work is complete, the City may make emergency repairs to the Work, if necessary, to prevent further damage, or if the Contractor does not promptly respond to a notice of condition requiring repairs. Contractor shall be responsible to City for this cost if the repairs are due to the Contractor's defective Work. If payments then or thereafter due the Contractor are not sufficient to cover such costs, the Contractor shall pay the difference to the City 1 4 6 Owner's Right to Use or Occupy 6 14.6.1 The City shall have the right to occupy or use without prejudice to the right of either party, any completed or largely completed portions of the Project, notwithstanding the time for completing the entire Work or such portions may not have expired. Such occupancy and use shall not constitute acceptance of any Work not in accordance with the Contract Documents 1.5 Contractor 1.5 1 The Contractor is the person or entity identified as such in the Agreement and is referred to throughout the Contract Documents as if singular in number The term "Contractor" means the Contractor or the Contractor's authorized representative 1.5.2 The Contractor shall perform the Work in accordance with the Contract Documents 1.5.3 The Contractor shall not be relieved of obligations to perform the Work in accordance with the Contract Documents either by activities or duties of the Architect in the Architect's administration of the Contract, or by tests, inspections or approvals required or performed by persons other than the Contractor 1.5 4 Review of Contract Documents and Field Conditions by Contractor 1541 The Contractor shall carefully study and compare the Agreement, Conditions of the Contract, Drawings, Specifications, Addenda, and Modifications and shall at once report to the Architect any error, inconsistency, or omission the Contractor discovers. These obligations are for the purpose of facilitating construction by the Contractor and are not for the purpose of discovering errors, omissions, or inconsistencies in the Contract Documents, however, any errors, inconsistencies or omissions discovered by the Contractor shall be reported promptly to the Architect as a request for information in such form as the Architect may require If the Contractor performs any construction activity knowing it involves a recognized error, inconsistency oromission in the Contract Documents without such notice to the Architect, the Contractor shall assume responsibility for such performance and shall pay the total amount of the attributable costs for correction. Contractor shall not be liable to City or Architect for any damage resulting from such error, inconsistency or omission which Contractor should not have discovered or which Contractor did discover and at once so reported. Contractor shall do no Work without approved Drawings and Specifications marked Issued for Construction. 1542 If the Contractor fails to perform the obligations of Paragraph 1 5 4 1 , the Contractor shall pay such costs and damages to the City as would have been avoided if the Contractor had performed such obligations 1543 The Contractor shall not be entitled to additional compensation for the "rework portion" of any additional work caused by its failure to carefully study and compare the Contract Documents prior to execution of the Work. 7 1544 The Contractor shall make a reasonable attempt to interpret the Contract Documents before asking the Architect for assistance in interpretation. The Contractor shall not ask the Architect for observance of work prior to the Contractor's field superintendent's personal inspection of the Work and his determination that the Work complies with the Contract Documents The Contractor shall arrange meetings prior to commencement of the Work of all major Subcontractors to allow the Subcontractor(s) to ask for any interpretation it may require 15.45 If, in the opinion of the Architect, the Contractor does not make a reasonable effort to comply with the above requirements of the Contract Documents and this causes the Architect or its Consultants to expend an unreasonable amount of time in the discharge of the duties imposed on the Architect by the Contract Documents, then the Contractor shall bear the cost of compensation for the Architect's additional services made necessary by such failure The Architect will give the Contractor prior notice of intent to bill for additional services related to above requirements before additional services are performed. 154.6 If the Contractor has knowledge that any of the products or systems specified will perform in a manner that will limit the Contractor's ability to satisfactorily perform Work or to honor Contractor's Warranty, Contractor shall promptly notify the Architect, in writing, providing substantiation for Contractor's position. Any necessary changes,including substitution of materials, shall be accomplished by appropriate Modification. 1.5.5 Supervision and Construction Procedures 155.1 The Contractor shall supervise and direct the Work, using the Contractor's best skill and attention. The Contractor shall be solely responsible for and have control over construction means, methods, techniques, sequences and procedures and for coordinating all portions of the Work under the Contract, unless the Contract Documents give other specific instructions concerning these matters If the Contract Documents give specific instructions concerning construction means, methods, techniques, sequences or procedures, the Contractor shall evaluate the jobsite safety thereof and, except as stated below, shall be fully and solely responsible for the jobsite safety of such means, methods, techniques,sequences or procedures If the Contractor determines that such means,methods, techniques, sequences or procedures may not be safe, the Contractor shall give timely written notice to the City and Architect and shall not proceed with that portion of the Work without further written instructions from the Architect. 1552 The Contractor shall be responsible to the City for acts and omissions of the Contractor's employees, Subcontractors and their agents and employees, and other persons or entities performing portions of the Work for or on behalf of the Contractor or any of its Subcontractors It is understood and agreed that the relationship of the Contractor to City shall be that of an independent contractor Nothing contained herein or inferable here from shall be deemed or construed to(1)make Contractor the agent,servant or employee of the City, or (2) to create any partnership,joint venture, or other association between City and Contractor Any direction or instruction by City or any of its authorized 8 representatives in respect of the Work shall relate to the results the City desires to obtain from the Work, and shall in no way affect Contractor's independent contractor status described herein. 1553 The Contractor shall be responsible for inspection of portions of Work already performed to determine that such portions are in proper condition to receive subsequent Work. 1554 Contractor shall execute the Work in a good and workmanlike manner, continuously and diligently in accordance with generally accepted standards of construction management and practice for construction of projects similar to the Project, using qualified, careful and efficient workers and in conformity with the provisions of this Contract and the other Contract Documents 1.5 6 Labor and Materials 15.6.1 Unless otherwise provided in the Contract Documents, the Contractor shall provide and pay for labor, materials, equipment, tools, construction equipment and machinery, water, heat, utilities, transportation, and other facilities and services necessary for proper execution and completion of the Work, whether temporary or permanent and whether or not incorporated or to be incorporated in the Work. 15.62 The Contractor may make substitutions only with the consent of the City, after evaluation by the Architect and in accordance with a Change Order 15.63 The Contractor shall enforce strict discipline and good order among the Contractor's employees and other persons carrying out the Contract. The Contractor shall not permit employment of unfit persons or persons not skilled in tasks assigned to them. 1.5 7 Warranty 15.7.1 The Contractor warrants to the City and Architect that, materials and equipment furnished under the Contract will be of good quality and new unless otherwise required or permitted by the Contract Documents,that the Work will be free from defects not inherent in the quality required or permitted, and that the Work will conform to the requirements of the Contract Documents and recognized industry standards Work not conforming to these requirements, including substitutions not properly approved and authorized, may be considered defective The Contractor's warranty excludes remedy for damage or defect caused by abuse, modifications not executed by the Contractor, improper or insufficient maintenance (unless such maintenance is Contractor's responsibility), improper operation, or normal wear and tear If required by the Architect, the Contractor shall furnish satisfactory evidence as to the kind and quality of materials and equipment.The warranties set out in this Paragraph are not exclusive of any other warranties or guarantees set out in other places in the Contract Documents or implied under applicable law 15.72 Pnor to final payment, Contractor shall furnish any manufacturer warranties required by the Contract Documents. 9 15.73 When deemed necessary by the City, and prior to installation of any Items specifically made subject to a performance standard or regulatory agency standard under any provision of the Contract Documents, Contractor shall furnish proof of conformance to the Architect. Proof of Conformance shall be in the form of(1) an affidavit from the manufacturer certifying that the item is in conformance with the applicable standard,-(2)an affidavit from a testing laboratory certifying that the product has been tested within the past year and is in conformance with the appreciated standard, or(3) such further reasonable proof as required by the Architect. 15.74 The warranties of Contractor provided in Subparagraph 1 5 7 1 shall in no way limit or abridge the warranties of the suppliers of equipment and system which are to comprise a portion of the Work and all of such warranties shall be in form and substance as required by the Contract Documents Contractor shall take no action or fail to act in any way which results in the termination or expiration of such third party warranties or which otherwise results in prejudice to the rights of City under such warranties Contractor agrees to provide all notices required for the effectiveness of such warranties and shall include provisions in the contracts with the providers and manufacturers of such systems and equipment whereby the City shall have a direct right, but not a duty, of enforcement of such warranty obligations 15.75 In the event of failure of materials, products, or workmanship, either during construction or the warranty period (which shall be one (1)year from the Date of Final Completion, except where a longer period is specified), the Contractor shall take appropriate measures to assure correction or replacement of the defective items, whether notified by the City or Architect. 15.7.6 Approximately eleven (11) months after Substantial Completion, the Contractor shall accompany the City and Architect on a complete inspection of the Project and be responsible for correcting any observed or reported deficiencies within thirty(30)calendar days. 1.5 8 Permits, Fees and Notices 15.8.1 Unless otherwise provided in the Contract Documents, the Contractor shall establish an Allowance in the GMP for the payment for gas, electric utility connections to the project. Owner shall pay the Contractor the direct costs of these connection fees as determined by the Utility's Terms and Conditions statement. 15.82 Water and Sewer utilities will be established and service provided at no-charge to the contractor However the contractor may provide the site with a temporary "hydrant meter"obtainable from the Public Works department. See council-approved fee schedule. 15.83 Upon acceptance of the project as Substantially Complete the Owner and Contractor shall arrange for the transfer of all utilities to the Owner's account.To avoid any interruption of critical utility services,Contractor shall notify Owner 60 days prior to 10 anticipated transfer date Owner shall immediately make arrangements to establish accounts as necessary to transfer billing within a seven day window of the scheduled date. Should transfer of utility billing be delayed through no fault of Contractor,Owner shall pay Contractor a daily utility rate equal to the charges accrued between planned transfer date and date of actual transfer 15.84 The Contractor shall include and pay for any inspections necessary for proper execution and completion of the Work which are customarily secured after execution of the Contract and which are legally required when bids are received or negotiations concluded. All permit fees for the project shall be the responsibility of the Owner The City will not charge inspection fees for inspection services provided by its internal forces. 15.85 The Contractor shall comply with and give notices required by laws, ordinances, rules, regulations and lawful orders and all other requirements of public authorities applicable to performance of the Work. The Contractor shall procure and obtain all bonds required of the City or the Contractor by the Contract Documents. In connection with such bonds, the Contractor shall prepare all applications, supply all necessaryback-up material, and furnish the surety with any required information. The Contractor shall also obtain and pay all charges for all approvals for street closing and other similar matters as may be necessary or appropriate from time to time for the performance of the Work. 15.8.6 It is not the Contractor's responsibility to ascertain that the Contract Documents are in accordance with applicable laws, statutes, ordinances, building codes, and rules and regulations. However, if the Contractor observes that portions of the Contract Documents are contrary therewith, the Contractor shall promptly notify the Architect and City in writing, and necessary changes shall be accomplished by appropriate Modification. 15.8.7 If the Contractor performs Work which it knows to be contrary to applicable laws, statutes, ordinances, building codes, and rules and regulations and fails to provide such notice to the Architect and City, the Contractor shall be liable for any cost incurred by the City due to the failure to provide notice and shall promptly remediate any and all work identified to be in violation. 15.8.8 The Contractor shall be responsible for timely notification to and coordination with all utility companies regarding the provision of or revising of services to the Project. The Contractor shall inform the Architect at once when the City's participation is required. Connections for temporary and permanent utilities required for the Work are the responsibility of the Contractor Payment for temporary and/or permanent utility services through Substantial Completion of the Work shall be the responsibility of the Contractor 1.5 9 Allowances. 159.1 Material and Equipment Allowances The Contractor shall include in the Contract Sum all allowances stated in the Contract Documents or identified in the development of the GMP These stated allowances represent the cost estimate of the 11 materials and equipment delivered and unloaded at the site The Contractor's installation labor, overhead, profit, and other expenses contemplated for the allowance material and equipment shall be included in allowance only where called for in the Contract Documents The Contractor shall purchase the allowance materials and equipment as directed by the Architect on the basis of the most qualified bidder of at least three (3) competitive bids If the actual cost of the material and equipment delivered and unloaded at the site is more or less than the individual allowance estimate, upon City approval the Contract Sum will be adjusted accordingly by Change Order The amount of the Change Order shall reflect (1) the difference between actual costs and the allowances under Paragraph 1 5.9 1 and (2) changes in Contractor's costs, subject to the limitations set forth at Paragraph 1 9.2.1 (c) 1592 Materials and equipment under an allowance shall be selected with reasonable promptness by the City to avoid delays in the Work (provided that if a decision is needed by a certain date to avoid delay, Contractor shall notify Architect in writing sufficiently in advance of the needed date to allow reasonable time for selections). 1593 Utility Connection Allowances The Contractor shall include in the Contract Sum Utility Connection allowances stated in the Contract Documents or identified in the development of the GMP These stated allowances represent the cost estimate of the Terms and Conditions of the Utility to perform the installation of materials and equipment of the site to provide the project with the subject utility The Contractor's labor, overhead, profit, if any, contemplated for the U t i 1 1 t y allowance shall be included in allowance only where called for in the Contract Documents. If the actual cost of the utility connection fees is more or less than the individual allowance estimate, upon City approval the Contract Sum will be adjusted accordingly by Change Order 1.5 10 Superintendent. 15.10.1 The Contractor shall employ a competent superintendent and necessary assistants who shall be in attendance at the Project site during performance of the Work. The superintendent shall represent the Contractor, and communications given to the superintendent shall be as binding as if given to the Contractor Important communications shall be confirmed in writing. Other communications shall be similarly confirmed on written request in each case Notwithstanding the foregoing, Contractor shall keep on the job the superintendent approved by City who shall not be transferred from the Project without City's consent (which shall not be unreasonably withheld) However, such obligation to furnish the superintendent shall not be construed (1) to preclude the promotion within Contractor's organization of any person assigned to the Project or (2) to give rise to any liability of Contractor if any person assigned to the Project leaves Contractor's employ If City reasonably determines that any employee of Contractor or of its Subcontractors is careless or not qualified to perform the Work assigned to him, and City and Contractor cannot, after a diligent and good faith attempt, agree what action should be taken with respect to the removal or reassignment of such employees, the Contractor shall promptly remove such employee from the Project and replace such employee. At all times while procurement activities are being performed in Contractor's office, Contractor shall appoint an individual 12 (approved by City, acting reasonably) authonzed to act on behalf of Contractor and with whom City may consult at all reasonable times, and who shall be authorized to receive the instructions, requests and decisions of City All of Contractor's and Subcontractor's personnel shall comply with all applicable health, safety, and loss prevention rules of applicable authorities Contractor shall, at its own expense, remove from the Project any person who fails to comply with such rules and instructions in any material respect. 1.5 11 Contractor's Construction Schedules. 15.11.1 The Contractor shall, promptly after executing the Contract, develop a construction schedule reasonably defining a plan for completing the Work within the required time. The format and detail of the schedule shall be in keeping with the size and complexity of the Project, and the schedule and all subsequent updates shall be subject to the approval of the City and Architect. The schedule and any updates shall not exceed time limits current under the Contract Documents including granted time extensions, and shall be revised at appropriate intervals as reasonably required by the City and Architect, shall be related to the entire Project (if more than one Contract is involved in the Project), and shall provide for expeditious and practicable execution of the Work. All updated schedules shall address the subject of how the Contractor intends to overcome any delays previously encountered. The Contractor shall submit to the Architect with each monthly Application for Payment, a copy of the updated construction schedule as a prerequisite for approval of Applications for Payment. 15.112 The Contractor shall prepare and keep current, for the Architect's approval, a schedule of submittals which is coordinated with the Contractor's construction schedule and allows the Architect reasonable time to review submittals. 15.113 The Contractor shall perform the Work in general accordance with the most recent schedules submitted to the City and Architect. 15.11.4 The process of approving Contractor's schedules and updates to Contractor's schedules shall not constitute a warranty by the City that any non-Contractor milestones or activities will occur as set out in the Contractor's schedules Approval of a Contractor's schedule does not constitute a commitment by the City to furnish any Owner- furnished information or material any earlier than City would otherwise be obligated to furnish that information or material under the Contract Documents 15.115 Failure of the Work to proceed in the sequence scheduled by Contractor shall not alone serve as the basis for a Claim for additional compensation or time 15.11.6 In the event there is interference with the Work which is beyond its control, Contractor shall attempt to reschedule the Work in a manner that will hold the additional time and costs to a minimum. 15.11.7 The construction schedules shall be in a detailed format satisfactory to the City and the Architect and shall also (1)provide a graphic representation of all activities and events that will occur during performance of Work; (2) identify each phase of construction and occupancy; and (3) set forth dates that are cntical in ensuring the 13 timely and orderly completion of the Work in accordance with the requirements of the Contract Documents (hereinafter referred to as Milestone Dates) 15.11.8 If not accepted, the construction schedules shall be promptly revised by the Contractor in accordance with the recommendations of the City and Architect and re-submitted for acceptance. The Contractor shall monitor the progress of the Work for conformance with the requirements of the construction schedules and shall promptly advise the City of any delays or potential delays. The accepted construction schedules shall be updated to reflect actual conditions as set forth in Paragraph 1 5 11 1, if requested, by either the City or Architect. 15.119 In the event any schedule indicates any delays, the Contractor shall propose an affirmative plan to correct the delay In no event shall any schedule constitute an adjustment in the Contract Time, any Milestone Date or the Contract Sum unless any such adjustment is agreed to by the City and authorized pursuant to Change Order 1.5 12 Documents and Samples at the Site 15.121 The Contractor shall maintain at the site for the City one record copy of the Permit Drawings, Specifications, Addenda, Change Orders, As Built Mark-ups and other Modifications, in good order and marked currently to record field changes and selections made during construction, and one record copy of approved Shop Drawings, Product Data, Samples and similar required submittals These shall be available to the Architect and shall be delivered to the Architect for submittal to the City upon completion of the Work. 1.5 13 Shop Drawings, Product Data and Samples. 15.13.1 Shop Drawings are drawings, diagrams, schedules and other data specially prepared for the Work by the Contractor or a Subcontractor, Sub- subcontractor,manufacturer, supplier or distributor to illustrate some portion of the Work. 15.132 Product Data are illustrations, standard schedules, performance charts, instructions, brochures, diagrams and other information furnished by the Contractor to illustrate materials or equipment for some portion of the Work. 15.133 Samples are physical examples which illustrate materials, equipment or workmanship and establish standards by which the Work will be judged. 15.134 Shop Drawings, Product Data, Samples and similar submittals are not Contract Documents. The purpose of their submittal is to demonstrate for those portions of the Work for which submittals are required by the Contract Documents theway by which the Contractor proposes to conform to the information given and the design concept expressed in the Contract Documents. Review by the Architect is subject to the limitations of Paragraph 1 6.2 7 Informational submittals upon which the Architect is not expected to take responsive action may be so identified in the Contract Documents. Submittals which are not required by the Contract Documents may be returned by the Architect without action. 14 15.135 The Contractor shall review for compliance with the Contract Documents, approve and submit to the Architect Shop Drawings, Product Data, Samples and similar submittals required by the Contract Documents with reasonable promptness and in such sequence as to cause no delay in the Work or in the activities of the City or of separate contractors. Submittals which are not marked as reviewed for compliance with the Contract Documents and approved by the Contractor may be returned by the Architect without action. 15.13.6 By approving and submitting Shop Drawings, Product Data, Samples and similar submittals,the Contractor represents that the Contractor has determined and verified matenals, field measurements and field construction criteria related thereto, or will do so, and has checked and coordinated the information contained within such submittals with the requirements of the Work and of the Contract Documents If, in the opinion of the Architect, the shop drawings indicate a lack of study and the review by the Contractor is incomplete, or indicate an inadequate understanding of the Work covered by the shop drawings, prior to submittal to the Architect, the shop drawings will be returned, unchecked, to the Contractor for correction of any/all of these deficiencies for subsequent resubmittal 15.13.7 The Contractor shall perform no portion of the Work for which the Contract Documents require submittal and review of Shop Drawings, Product Data, Samples or similar submittals until the respective submittal has been approved by the Architect. 15.13.8 The Work shall be in accordance with approved submittals except that the Contractor shall not be relieved of responsibility for deviations from requirements of the Contract Documents by the Architect's approval of Shop Drawings, Product Data, Samples or similar submittals unless the Contractor has specifically informed the Architect in writing of such deviation at the time of submittal and (1) the Architect has given written approval to the specific deviation as a minor change in the Work, or (2) a Change Order or Construction Change Directive has been issued authorizing the deviation. The Contractor shall not be relieved of responsibility for errors or omissions in Shop Drawings,Product Data, Samples or similar submittals by the Architect's approval thereof 15.139 The Contractor shall direct specific attention, in writing or on resubmitted Shop Drawings,Product Data, Samples or similar submittals, to revisions other than those requested by the Architect on previous submittals. In the absence of such written notice the Architect's approval of a resubmission shall not apply to such revisions 15.13.10 The Contractor shall not be required to provide professional services which constitute the practice of architecture or engineering unless such services are specifically required by the Contract Documents for a portion of the Work or unless the Contractor needs to provide such services in order to carry out the Contractor's responsibilities for construction means, methods, techniques, sequences and procedures The Contractor shall not be required to provide professional services in violation of applicable law If professional design services or certifications by a design professional related to systems, materials or equipment are specifically required of the Contractor by the 15 Contract Documents, the City and the Architect will specify all performance and design criteria that such services must satisfy The Contractor shall cause such services or certifications to be provided by a properly licensed design professional,whose signature and seal shall appear on all drawings, calculations, specifications, certifications, Shop Drawings and other submittals prepared by such professional. Shop Drawings and other submittals related to the Work designed or certified by such professional, if prepared by others, shall bear such professional's written approval when submitted to the Architect. The City and the Architect shall be entitled to rely upon the adequacy, accuracy and completeness of the services, certifications or approvals performed by such design professionals, provided the City and Architect have specified to the Contractor all performance and design criteria that such services must satisfy Pursuant to this Paragraph 1 5 13 10, the Architect will review, approve or take other appropriate action on submittals only for the limited purpose of checking for conformance with information given and the design concept expressed in the Contract Documents The Contractor shall not be responsible for the adequacy of the performance or design criteria required by the Contract Documents. 15.13.11 Adequate copies of Shop Drawings for architectural, structural, mechanical and electrical work shall be submitted to the Architect for review in the order of scheduled and upcoming work. 15.13.12 The Contractor shall submit complete Drawings, Data and Samples to the Architect at least thirty (30) days prior to the date the Contractor needs the reviewed submittals returned. The Contractor shall be prepared to submit color samples on any key items within sixty (60) days of the issuance of the notice to proceed. Once samples of all key items are received,the Architect will finalize color selections 15.13.13 The Contractor shall submit the number of copies of Product Data and Samples which the Contractor and its Subcontractor(s)need for their use Where Shop Drawings are involved,the Contractor shall submit one(1)high quality reproducible transparency and one (1) opaque print of the Shop Drawings for the Architect. The reproducible transparency will be marked by the Architect and/or its consultants. After final review and correction of the submittal, Contractor shall send one (1) corrected set to the Architect and one (1) to each of the Architect's consultants involved with the particular section of Work. 15.13.14 The Contractor shall provide composite BIM Model within three (3) months of the issuance of the GMP The City will supply the contractor with the BIM model(s) that convey the most up to date design for the contractor's use The contractor's BIM model will show at a minimum, how all piping (2" or larger), ductwork, lights, conduit, equipment, etc (major subcontractors) will fit into the ceiling space allotted, including clearances required by the manufacturer, by code, or in keeping with good construction practice. Contractor to provide a single host model and associated files/references for a complete working BIM model. 1.5 14 Use of Site 15.14.1 The Contractor shall confine operations at the site to areas 16 permitted by law, ordinances, permits and the Contract Documents and shall not unreasonably encumber the site with materials or equipment. 15.142 The Contractor's access to the site, parking, field office location,material and equipment storage,and confinement of said areas shall be coordinated with, and approved by the City prior to the Contractor's mobilization on the site Once agreed upon,the Contractor shall not adjust or increase any of the above areas without prior consent by the Owner 1.5 15 Cutting and Patching. 15.15.1 The Contractor shall be responsible for cutting, fitting or patching required to complete the Work or to make its parts fit together properly 15.152 The Contractor shall not damage or endanger a portion of the Work or fully or partially completed construction of the City or separate contractors by cutting, patching or otherwise altering such construction, or by excavation. The Contractor shall not cut or otherwise alter such construction by the City or a separate contractor except with written consent of the City and of such separate contractor; such consent shall not be unreasonably withheld. The Contractor shall not unreasonably withhold from the City or a separate contractor the Contractor's consent to cutting or otherwise altering the Work. Any such alteration involving cutting or removal of previously installed work shall be approved in writing by the Contractor and the Architect prior to initiation of the alteration. 1.5 16 Cleaning Up 15.16.1 The Contractor shall keep the premises and surrounding area free from accumulation of waste materials or rubbish caused by operations under the Contract. At completion of the Work, the Contractor shall remove from and about the Project waste materials, rubbish, the Contractor's tools, construction equipment,machinery and surplus materials. The Contractor shall be responsible for protection of the Work and shall repair or replace damaged work at Substantial Completion of the Work.The Contractor shall remove all temporary protections at the completion of the Work. 15.162 If the Contractor fails to clean up as provided in the Contract Documents,the City may do so and the cost thereof shall be charged to the Contractor 15.163 Prior to the Architect's inspection for Substantial Completion, the Contractor shall clean exterior surfaces exposed to view; remove temporary labels, stains, and foreign substances, polish transparent and glossy surfaces, clean equipment and fixtures to a sanitary condition, clean roofs, clean the Project site, sweep paved areas and rake clean other surfaces, and remove trash and surplus materials from the Project site 1.5 17 Access to Work. 15.17.1 The Contractor shall provide the City, its contractors, 17 vendors or employees and Architect access to the Work in preparation and progress wherever located. Contractor may impose such safety "rules and regulations" on these entities as are imposed on its own sub-contractors, vendor and employees but shall not require undue or burdensome requirements that Contractor's own sub-contractors,vendors or employees are not also subjectto 1.5 18 Royalties, Patents and Copyrights 15.18.1 The Contractor shall pay all royalties and license fees. The Contractor shall defend suits or claims for infringement of copyrights and patent rights and shall hold the City and Architect harmless from loss on account thereof, but shall not be responsible for such defense or loss when a particular design, process or product of a particular manufacturer or manufacturers is required by the Contract Documents or where the copyright violations are contained in Drawings, Specifications or other documents prepared by the City or Architect. However, if the Contractor has reason to believe that the required design, process or product is an infringement of a copynght or a patent, the Contractor shall be responsible for such loss unless such information is promptly furnished to the Architect. 1.5 19 INDEMNIFICATION AND RELEASE 15.19.1 CONTRACTOR SHALL PROTECT, DEFEND, HOLD HARMLESS AND INDEMNIFY THE CITY FROM ANY AND ALL CLAIMS, DEMANDS, EXPENSES, LIABILITY OR CAUSES OF ACTION FOR INJURY TO ANY PERSON,INCLUDING DEATH,AND FOR DAMAGE TO ANY PROPERTY, TANGIBLE OR INTANGIBLE, OR FOR ANY BREACH OF CONTRACT ARISING OUT OF OR IN ANY MANNER CONNECTED WITH THE WORK DONE BY ANY PERSON UNDER THIS AGREEMENT. IT IS THE INTENT OF THE PARTIES THAT THIS PROVISION SHALL EXTEND TO, AND INCLUDE, ANY AND ALL CLAIMS, CAUSES OF ACTION OR LIABILITY CAUSED BY THE CONCURRENT,JOINT AND/OR CONTRIBUTORY NEGLIGENCE OF THE CITY, AN ALLEGED BREACH OF AN EXPRESS OR IMPLIED WARRANTY BY THE CITY OR WHICH ARISES OUT OF ANY THEORY OF STRICT OR PRODUCTS LIABILITY 15.192 The indemnifications contained in Paragraph 1.5 19 1 shall include but not be limited to the following specific instances (a) The City is damaged due to the act, omission, mistake, fault or default of the Contractor. (b) In the event of any claims for payment for goods or services brought by any material suppliers, mechanics, laborers, or other subcontractors. (c) In the event of any and all injuries to or claims of adjacent property owners caused by the Contractor,its agents,employees,and representatives. 18 (d) In the event of any damage to the floor,walls,etc.,caused by the Contractor's personnel or equipment during installation. (e) The removal of all debris related to the Work. (f) The acts and omissions of the subcontractors. (g) The Contractor's failure to comply with applicable federal,state,or local regulations,that touch upon or concern the maintenance of a safe and protected working environment and the safe use and operation of machinery and equipment in that working environment, no matter where fault or responsibility lies. 15.193 The indemnification obligations of the Contractor under this Paragraph shall not extend to include the liability of any professional engineer,the architect, their consultants, and agents or employees of any of them arising out of(1) the preparation or approval of maps, drawings, opinions, reports, surveys, Change orders, designs or specifications, or (2) the giving of or the failure to give directions or instructions by the professional engineer, the architect, their consultants, and agents and employees of any of them, provided such giving or failure to give is the primary cause of the injury or damage 15.19.4 It is agreed with respect to any legal limitations now or hereafter in effect and affecting the validity or enforceability of the indemnification obligation under Paragraph 1 5 19 1 , such legal limitations are made a part of the indemnification obligation and shall operate to amend the indemnification obligation to the minimum extent necessary to bring the provision into conformity with the requirements of such limitations, and as so modified, the indemnification obligation shall continue in full force and effect. 15.195 The Contractor assumes full responsibility for the Work to be performed hereunder, and hereby releases, relinquishes, and discharges the City, its officers,agents,and employees from all claims, demands, and causes of action of every kind and character, including the cost of defense thereof, for any injury to or death of any person (whether employees of either party or other third parties) and any loss of or damage to any property(whether property of either of the parties hereto,their employees,or of third parties) that is caused by or alleged to be caused by, arising out of, or in connection with the Contractor's Work to be performed hereunder This release shall apply regardless of whether said claims, demands, and causes of action are covered in whole or in part by insurance, and in the event of injury, death, property damage, or loss suffered by the Contractor, any Subcontractor,or any person or organization directly or indirectly employed by any of them to perform or furnish work on the Project, this release shall apply regardless of whether such injury, death, loss, or damage was caused in whole or in part by the negligence of the City 15.19.6 The rights and obligations of the parties under Article 1 5 19 5, shall survive this contract's termination, expiration and completion. 19 1.5.20 Reproducible Record Drawings 1520.1 Required as part of Final Completion of the Project, the Contractor shall submit one (1) complete set of drawings with all changes made during construction,including concealed mechanical,electrical,and plumbing items 1.6 Administration of the Contract. 161 Architect. 1.6.1.1 The Architect is the person lawfully licensed to practice architecture or an entity lawfully practicing architecture identified as such in the Agreement and is referred to throughout the Contract Documents as if singular in number The term "Architect" means the Architect or the Architect's authorized representative or such successor Architect as City may appoint by written notice to Contractor from time to time 1.6.12 City shall notify Contractor when the duties, responsibilities or limitations of authority of the Architect have been modified. 1.6.13 If the employment of the Architect is terminated,the City may elect to appoint a replacement Architect, or at its option, elect to complete the Project using another consultant or representative to perform the balance of the Architect's functions on the Work. 1.6.14 Except as herein expressly provided, the Contractor shall not be relieved of its obligation to perform the Work in strict accordance with the Contract Documents by the activities or duties of the Architect. 1 6.2 Architect's Administration of the Contract. 1.62.1 Certain portions of the administration of the Contract will be performed by the Architect. The Architect shall not have the authority to act on behalf of the City unless such authority is expressly granted in the Contract Documents, nor shall such authority be implied from any act or representation of the Architect. The City is free to elect to have some of the administration duties set out for the Architect to perform under the Contract Documents performed by a construction manager or by employees of the City 1.622 The Architect, as a representative of the City, will visit the site at intervals appropriate to the stage of the Contractor's operations (1) to become generally familiar with and to keep the City informed about the progress and quality of the portion of the Work completed, (2) to endeavor to guard the City against defects and deficiencies in the Work, and (3) to determine in general if the Work is being performed in a manner indicating that the Work, when fully completed, will be in accordance with the Contract Documents However, the Architect will not be required to make exhaustive or continuous on-site inspections to check the quality or quantity of the Work. The Architect will neither have control over or charge of, nor be responsible for, the construction means, methods, techniques, sequences or procedures, or for the safety precautions and programs in connection with the Work, since these are solely the Contractor's rights and responsibilities 20 under the Contract Documents, except as provided in Paragraph 1.5 5 1 In no event shall City or any other party have control over,be in charge of, or be responsible for construction means, methods,techniques, sequences,procedures, or for safety precautions and programs in connection with the Work, since these are solely Contractor's responsibilities City will not be responsible for the Contractor's failure to carry out the Work in accordance with the Contract Documents City will not have control over, be in charge of, and will not be responsible for the acts or omissions of Contractor, Subcontractors, or their agents or employees, or of any other persons performing portions of the Work. 1.623 The Architect will not be responsible for the Contractor's failure to perform the Work in accordance with the requirements of the Contract Documents. The Architect will not have control over or charge of and will not be responsible for acts or omissions of the Contractor, Subcontractors, or their agents or employees, or any other persons or entities performing portions of the Work. 1.624 Communications Facilitating Contract Administration. Except as otherwise provided in the Contract Documents or when direct communications have been specially authorized,the City and Contractor shall endeavor to communicate with each other through the Architect about matters arising out of or relating to the Contract. Communications by and with the Architect's consultants shall be through the Architect. Communications by and with Subcontractors and material suppliers shall be through the Contractor Communications by and with separate contractors shall be through the City 1.625 Based on the Architect's evaluations of the Contractor's Applications for Payment, the Architect will review and certify the amounts due the Contractor and will issue Certificates for Payment in such amounts 1.626 The Architect will have authority to reject Work that does not conform to the Contract Documents Whenever the Architect considers it necessary or advisable for implementation of the intent of the Contract Documents, the Architect will have authority to require additional inspection or testing of the Work in accordance with Paragraphs 1 15 5.2 and 1 15.5 3 , whether or not such Work is fabncated, installed or completed. However, neither this authontyof the Architect nor a decision made reasonably and in good faith either to exercise or not to exercise such authority shall give rise to a duty or responsibility of the Architect to the Contractor, Subcontractors, material and equipment suppliers, their agents or employees, or other persons or entities performing portions of the Work. 1.627 The Architect will review and approve or take other appropriate action upon the Contractor's submittals such as Shop Drawings, Product Data and Samples,but only for the limited purpose of checking for conformance with information given and the design concept expressed in the Contract Documents. The Architect's action will be taken with such reasonable promptness as to cause no delay in the Work or in the activities of the City, Contractor or separate contractors, while allowing sufficient time in the Architect's professional judgment to permit adequate review Review of such submittals is not conducted for the purpose of determining the accuracy and completeness of other details such as dimensions and quantities, or for substantiating instructions for installation or performance of equipment or systems, all of which remain the responsibility of the 21 Contractor 'as required by the Contract Documents The Architect's review of the Contractor's submittals shall not relieve the Contractor of its obligations The Architect's review shall not constitute approval of safety precautions or, unless otherwise specifically stated by the Architect, of any construction means, methods, techniques, sequences or procedures. The Architect's approval of a specific item shall not indicate approval of an assemblyof which the item is a component. 1.628 The Architect will prepare Change Orders and Construction Change Directives, and may authonze minor changes in the Work as provided in Paragraph 194 1.629 The Architect will conduct inspections to determine the date or dates of Substantial Completion and the date of Final Completion, will receive and forward to the City, for the City's review and records, written warranties and related documents required by the Contract and assembled by the Contractor, and will issue a final Certificate for Payment upon compliance with the requirements of the Contract Documents. 1.6210 If the City and Architect agree, the Architect will provide one or more project representatives to assist in carrying out the Architect's responsibilities at the site The duties, responsibilities and limitations of authority of such project representatives shall be as set forth in an exhibit to be incorporated in the Contract Documents 1.6211 The Architect will interpret and decide matters concerning performance under, and requirements of, the Contract Documents on written request of either the City or Contractor The Architect's response to such requests will be made in writing within any time limits agreed upon or otherwise with reasonable promptness (a) If no agreement is made concerning the time within which interpretations required of the Architect shall be furnished in compliance with this Paragraph 1 6.2 11, then delay shall not be recognized on account of failure by the Architect to furnish such interpretations until thirty(30) days after written request is made for them. 1.6212 Interpretations and decisions of the Architect will be consistent with the intent of and reasonably inferable from the Contract Documents and will be in wasting or in the form of drawings 1.62.13 The Architect's decisions on matters relating to all Work will be final if consistent with the intent expressed in the Contract Documents. 1 6.3 Claims and Disputes. 1.63.1 Definition. A Claim is any demand or assertion by the Contractor that it should be paid more money than the Contract Sum, as adjusted under the Change Order provisions herein, by the City because of action or inaction on the part of City, Architect, or any party for whom City is responsible, or any party with whom City has separately contracted for other portions of the Project, including but not limited to any demand or assertion that Contractor's performance has been delayed, interrupted or interfered with, that Contractor's performance has been accelerated, constructively 22 accelerated, or suspended, that Contractor's performance has been wrongfully terminated, that the Contract Documents have been misinterpreted, that here has been a failure of payment,that Contractor has encountered concealed or unknown conditions,that Contractor has encountered hazardous materials, that there are problems with the Contract Documents, or the timing of Architectural approvals or decisions, that action of the City have been intentionally wrongful or deceptive in any way to the Work, that the amount of time or money granted in a Construction Change Directive is inadequate, that an item treated as a minor change in the Work should have been treated as a Change Order,that a time extension granted was inadequate, or that Contractor is entitled to any other relief, on any legal theory, related to the Work and the Contract. Nothing contained in this subparagraph shall be construed as creating any Contractor right to make a claim, where no such right otherwise exists. 1.632 Notice Requirement: Within ten(10) calendar days of the first occurrence of an event that Contractor has any reason to believe might result in a Claim, or within ten (10) calendar days of Contractor's discovery of the first occurrence of the event that Contractor has any reason to believe might result in a Claim, if the first occurrence of the event was willfully hidden from the Contractor, the Contractor shall file a written document clearly captioned "Notice of Claim" with City and Architect. The notice shall clearly set out the specific matter of complaint, and the impact of damages which may occur or have occurred as a result thereof, to the extent the impact or damages can be assessed at the time of the notice If the impact or damages cannot be assessed as of the date of the notice, the notice shall be amended at the earliest date that is reasonably possible. 1.6321 Any Claim or portion of a Claim that has not been made the specific subject of a notice strictly in accordance with the requirements of this Paragraph shall be waived. It is imperative that City have timely, specific notice of any subject, the impact of which City may be in a position to mitigate 1.6322 No course of conduct or dealings between the parties, nor implied acceptance of alteration or additions to the Work or changes to the Contract schedule, shall be the basis for any claim for an increase in the Contract Sum or change in the Contract Time 1 6.3.3 Claims Handling During Construction. After receipt of a Notice of Claim, the City may elect to refer the matter to the Architect or another party for review The reviewing party will make a reasonable effort to have a response within thirty (30) days of receiving the Notice of Claim. Contractor will attend meetings called to review and discuss the Claim and mitigation of the problem, and shall furnish any reasonable factual backup of the Claim requested. The City may also elect to defer consideration of the Claim until the Work is completed, in which case the same review options shall be available to the City at the completion of the Work. At any stage, the City is entitled to refer a Claim to mediation under the Construction Industry Mediation Rules of the American Arbitration Association, and if this referral is made, Contractor will take part in the mediation process. The filing, mediation or rejection of a Claim does not entitle Contractor to stop performance of the Work. The Contractor shall proceed diligently with performance of the Work during the pendency of any claim, except termination under City's direction to stop the Work. 23 Agreements reached in mediation shall be enforceable as settlement agreements in any court having jurisdiction thereof The parties shall share the Mediator's fee and any filing fees equally, and the Mediation shall be held in Brazoria County, Texas. 1 6.3 4 Claims Handling Following Construction. The acceptance of final payment shall constitute a waiver of Claims by the Contractor which have not previously been identified in a timely notice of Claim and specifically reserved in the final Application for Payment. 1 6.3.5 Claims for Concealed or Unknown Conditions. Only if conditions are encountered at the site which are (1) subsurface or otherwise concealed physical conditions which differ materially from those indicated in the Contract Documents or(2)unknown physical conditions of an unusual nature,which differ materially from those ordinarily found to exist and generally recognized as inherent in construction activities of the character provided for in the Contract Documents, then Contractor shall be entitled to make a Claim if it can satisfy all of the other requirements of Paragraph 1 6 1 6.3 6 Claims for Additional Cost. If the Contractor wishes to make Claim for an increase in the Contract Sum, written notice and prior approval of City must occur before Contractor may execute the Work. Prior notice is not required for Claims relating to an emergency endangering life or property ansing under Paragraph 1 12 4 1 6.3 7 Calculating Claim Amount: In calculating the amount of any Claim, the following standards will apply- (a) No indirect or consequential damages will be allowed. (b) All claims must be directly and specifically shown to be caused by a proven wrong. No recovery shall be based on a comparison of planned expenditures to total actual expenditures, or on estimated losses of labor efficiency, or on a comparison of planned man loading to actual man loading, or any other analysis that is used to show claims indirectly (c) A claim, to the extent recoverable, is limited to the additional, actual costs specifically shown to have been directly incurred by the Contractor as determined through the dispute process. (d) The maximum daily limit on any recovery for delay shall be the amount established by the Contractor for job overhead costs, defined in the Schedule of Values, divided by the total number of calendar days of Contract Time called for in the original Contract. Absent an overhead amount in the Schedule of Values,the amount estimated by the Contractor for job overhead costs shall be used. 1.7 Subcontractors. 171 Definitions. 1.7.1.1 A Subcontractor is a person or entity who has a direct contract with the Contractor to perform a portion of the Work at the site The term "Subcontractor" 24 is referred to throughout the Contract Documents as if singular in number and means a Subcontractor or an authorized representative of the Subcontractor The term "Subcontractor" does not include a separate contractor or subcontractors of a separate contractor 1.7.12 A Sub-subcontractor is a person or entity who has a direct or indirect contract with a Subcontractor to perform a portion of the Work at the site The term "Sub-subcontractor" is referred to throughout the Contract Documents as if singular in number and means a Sub-subcontractor or an authorized representative of the Sub- subcontractor 1 7.2 Award of Subcontracts and Other Contracts for Portions of the Work. 1.721 Unless otherwise stated in the Contract Documents or the bidding requirements, the Contractor, as soon as practicable after award of the Contract, shall furnish in writing to the City, through the Architect, the names of persons or entities (including those who are to furnish labor, materials or equipment fabricated to a special design)proposed for each principal portion of the Work. The Architect will promptly reply to the Contractor in writing stating whether or not the City or the Architect, after due investigation, has reasonable objection to any such proposed person or entity Failure of the City or Architect to reply promptly shall constitute notice of no reasonable objection. 1.722 The Contractor shall not contract with a proposed person or entity to whom the City or Architect has made reasonable and timely objection. The Contractor shall not be required to contract with anyone to whom the Contractor has made reasonable objection. 1.723 If the City or Architect has reasonable objection to aperson or entity proposed by the Contractor,the Contractor shall propose another to whom the City or Architect has no reasonable objection. If the proposed but rejected Subcontractor was reasonably capable of performing the Work, the Contract Sum and Contract Time shall be increased or decreased by the difference, if any, occasioned by such change, and an appropriate Change Order shall be issued before commencement of the substitute Subcontractor's Work. However, no increase in the Contract Sum or Contract Time shall be allowed for such change unless the Contractor has acted promptly and responsively in submitting names as required. 1.724 The Contractor shall not change a Subcontractor, person or entity previously selected if the City or Architect makes reasonable objection to such substitute 1.725 The Contractor shall submit the list of proposed Subcontractors on a form provided by the Architect. The Contractor may obtain blank copies from the Architect. 1.726 The Contractor and Subcontractors are required to visit the site and completely familiarize themselves with the existing conditions prior to the submission of Proposal(s) No additional increase in the Contract Sum will be provided when existing 25 or known conditions require a certain amount of work to comply with the intent of the Contract Documents 1 7.3 Sub-contractual Relations. 1.73.1 By appropriate agreement, written where legally required for validity, the Contractor shall require each Subcontractor, to the extent of the Work to be performed by the Subcontractor, to be bound to the Contractor by terms of the Contract Documents, and to assume toward the Contractor all the obligations and responsibilities, including the responsibility for safety of the Subcontractor's Work, which the Contractor, by these Documents, assumes toward the City and Architect. Each subcontract agreement shall preserve and protect the rights of the City and Architect under the Contract Documents with respect to the Work to be performed by the Subcontractor so that subcontracting thereof will not prejudice such rights Where appropriate, the Contractor shall require each Subcontractor to enter into similar agreements with Sub-subcontractors. The Contractor shall make available to each proposed Subcontractor, prior to the execution of the subcontract agreement, copies of the Contract Documents to which the Subcontractor will be bound,and,upon written request of the Subcontractor,identify to the Subcontractor terms and conditions of the proposed subcontract agreement which may be at variance with the Contract Documents Subcontractors will similarly make copies of applicable portions of such documents available to their respective proposed Sub-subcontractors. 1 7 4 Contingent Assignment Of Subcontracts 1.741 Each subcontract agreement for a portion of the Work is assigned by the Contractor to the City provided that: (a) assignment is effective only after termination of the Contract by the City for cause pursuant to Paragraph 1 16.2 and only for those subcontract agreements which the City accepts by notifying the Subcontractor and Contractor in writing; and (b) assignment is subject to the prior rights of the surety, if any, obligated under bond relating to the Contract. 1.742 City shall only be responsible for compensating Subcontractor for Work done or materials furnished after the date City gives written notice of its acceptance of the subcontractagreement. 1.743 Each Subcontract and assignment shall provide that the City shall only be responsible to the Subcontractor for those services and materials furnished by the Subcontractor subsequent to the City's exercise of any rights under this contingent assignment. 17.5 Responsibility 1.75.1 Contractor shall be fully responsible for the performance of its Subcontractor, including those selected or approved by the City 26 1.8 Construction by Owner or by Separate Contractors 1 8 1 Owner's Right to Perform Construction and to Award Separate Contracts. 1.8.1.1 The City reserves the right to perform other construction work, maintenance and repair work near or adjacent to the site during the time period of the Work. Owner may perform other Work with separate contractors City shall have access to the site at all times Any contractor performing work on the site whether for the project or for other projects that require access through this site shall maintain the same insurance and indemnity limits as those of the Contractor 1.8.12 When separate contracts are awarded for different portions of the Project or other construction or operations on the site, the term "Contractor" in the Contract Documents in each case shall mean the Contractor who executes each separate Owner-Contractor Agreement. 1.8.2 Mutual Responsibility 1.821 The Contractor shall afford the City and separate contractors reasonable opportunity for introduction and storage of their materials and equipment and performance of their activities, and shall connect and coordinate the Contractor's construction and operations with theirs as required by the Contract Documents. 1.822 If part of the Contractor's Work depends for proper execution or results upon construction or operations by the City or a separate contractor,the Contractor shall, prior to proceeding with that portion of the Work, promptly report to the Architect discrepancies or defects in such other construction that would render it unsuitable for such proper execution and results. Failure of the Contractor so to report shall constitute an acknowledgment that the City's or separate contractor's completed or partially completed construction is fit and proper to receive the Contractor's Work, except as to defects not then reasonably discoverable 1.823 The City shall be reimbursed by the Contractor for costs incurred by the City which are payable to a separate contractor because of delays, improperly timed activities or defective construction of the Contractor 1.824 The Contractor shall promptly remedy damage wrongfully caused by the Contractor to completed or partially completed construction or to property of the City or separate contractors as provided in Paragraph 1 12.2.5 1.825 The City and each separate contractor shall have the same responsibilities for cutting and patching as are described for the Contractor in Paragraph 1515 1 8.3 Owner's Right to Clean Up. 1.83.1 If a dispute arises among the Contractor, separate contractors and the City as to the responsibility under their respective contracts for maintaining the 27 premises and surrounding area free from waste materials and rubbish, the City may clean up and the Architect will allocate the cost among those responsible 1.9 Changes in the Work. 1.91 General Changes in the Work may be accomplished after execution of the Contract, and without invalidating the Contract,by Change Order, Construction Change Directive or order for a minor change in the Work. The Contract Sum and/or Contract Time may be increased for changes in the Work if the provisions of this Paragraph have been met. 191.1 No change in the Contract Sum and/or Contract Time will be allowed for a change in the Work unless prior to performing the changed Work, the Contractor has provided the City in writing a proposal for any change in price and/or change in Contract Time caused by the change in Work, and a Change Order is subsequently executed. A field directive or field order shall not be recognized as having any impact upon the Contract Sum or the Contract Time,and Contractor shall have no Claim therefore,unless it shall,prior to complying with the directive and in any event within fourteen(14) calendar days of receiving the directive, submit a change proposal to the City, and a Change Order is subsequently executed, or Contractor satisfies the requirements of Paragraph 1 6 3 Contractor's proposal shall be subject to City's acceptance and remain firm and irrevocable for a period of forty-five (45) calendar days after receipt by City Thereafter, Contractor reserves the right to resubmit such change proposal upon different pricing and time of performance terms 19.12 A Change Order shall be based upon agreement among the City, Contractor and Architect; a Construction Change Directive requires agreement by the City and Architect and may or may not be agreed to by the Contractor; an order for a minor change in the Work may be issued by the Architect alone 19.13 Changes in the Work shall be performed under applicable provisions of the Contract Documents, and the Contractor shall proceed promptly, unless otherwise provided in the Change Order, Construction Change Directive or order for a minor change in the Work. Except as permitted in Paragraph 1 9.3 , a change in the Contract Sum or the Contract Time shall be accomplished only by Change Order 19.14 The Contractor, upon receipt of written notification by the Architect of a proposed item of change in the Work, shall prepare as soon as possible a Change Proposal in such form or forms as directed by the Architect. (a) Each separate Change Proposal shall be numbered consecutively and shall include material costs, labor costs, fees, overhead and profit. The Change Proposal shall specify all costs related to the proposed change in the Work, including any disruption or impact on performance (b) The Subcontractor's itemized accounting shall be included with the Change Proposal. 28 (c) If a Change Proposal is returned to the Contractor for additional information or if the scope of the proposed change in the Work is modified by additions, deletions or other revisions, the Contractor shall revise the Change Proposal accordingly and resubmit the revised Change Proposal to the Architect. (d) A revised Change Proposal shall bear the original Change Proposal number suffixed by the letter "R" to designate a revision in the original Change Proposal. If additional revisions to a revised Change Proposal are necessary, each subsequent revision shall be identified by an appropriate numeral suffix immediately following the"R"suffix. (e) Upon written approval of a Change Proposal by the City, the Architect will prepare an appropriate Change authorizing such change in Work. (f) The Contractor shall request extensions of Contract Time due to changes in the Work at the time of submitting its Change Proposal Contractor's failure to do so shall represent a waiver of any right to request a time extension. 1.9.2 Change Orders 1.9.2.1 A Change Order is a written instrument prepared by the Architect and signed by the City, Contractor and Architect, stating their agreement upon all of the following. (a) change in the Work; and the amount of the adjustment, if any, in the Contract Sum, (b) the extent of the adjustment, if any, in the Contract Time 1.9.2.2 Methods used in determining adjustments to the Contract Sum may include those listed below. (a) mutual acceptance of a lump sum properly itemized and supported by sufficient substantiating data to permit evaluation, or (b) unit prices stated in Contract Documents or subsequently agreed upon in writing; or (c) cost shall be determined in a manner agreed upon by the parties and a mutually acceptable fixed fee, or (d)the percentage fee established at Subparagraph 1 9 3 6 29 1.9.2.3 Agreement on any Change Order shall constitute a final settlement of all Claims by the Contractor directly or indirectly arising out of or relating to the change in Work which is the subject of the Change Order, including, but not limited to, all direct and indirect costs and impact costs associated with such change and any and all adjustments to the Contract Sum and the Contract Time 1.9.3 Construction Change Directives. 1.9.3 1 A Construction Change Directive is a written order prepared by the Architect and signed by the City and Architect, directing a change in the Work prior to agreement on adjustment,if any, in the Contract Sum or Contract Time, or both. The City may by Construction Change Directive, without invalidating the Contract, order changes in the Work within the general scope of the Contract consisting of additions, deletions or other revisions, the Contract Sum and Contract Time being adjustedaccordingly 1.9.3.2 A Construction Change Directive shall be used in the absence of total agreement on the terms of a Change Order 1.9.3.3 The Construction Change Directive shall include a unilateral change in the Contract Sum and/or Contract Time reflecting the City's view of the appropriate change in the Contract Sum and/or Contract Time for the change in Work covered by the Construction Change Directive Until agreement is reached by the City and Contractor on these issues, the changes in Contract Sum and Contract Time set out in the Construction Change Directive shall be used for Schedule of Values, payment and scheduling purposes 1.9.3 4 Upon receipt of a Construction Change Directive, the Contractor shall promptly proceed with the change in the Work involved and advise the Architect of the Contractor's agreement or disagreement with the method, if any, provided in the Construction Change Directive for determining the proposed adjustment in the Contract Sum or Contract Time 1.9.3.5 A Construction Change Directive signed by the Contractor indicates the agreement of the Contractor therewith, including adjustment in Contract Sum and Contract Time or the method for determining them. Such agreement shall be effective immediately and shall be recorded as a Change Order 1.9.3.6 In the absence of an agreement between City and Contractor on the proper change to the Contract Sum or Contract Time because of a change in the Work, Contractor may treat the matter as a Claim under Paragraph 1 6.3 In such event,the Contractor shall be entitled to recover only the amount by which the Cost of the Work has been reasonably increased over the Cost of Work without the change in the Work,plus five percent(5%) 1.9.3 7 Pending final determination of the cost of a Construction Change Directive to the City, amounts not in dispute may be included in Applications for Payment. The amount of credit to be allowed by the Contractor to the City for a deletion or change which results in a net decrease in the Contract Sum shall be actual net cost as 30 confirmed by the Architect. When both additions and credits covering related Work or substitutions are involved in a change,the allowance for overhead and profit shall be figured on the basis of net increase, if any,with respect to that change 1.9 4 Minor Changes in the Work. 1.9 41 The Architect will have authority to order minor changes in the Work not involving adjustment in the Contract Sum or extension of the Contract Time and not inconsistent with the intent of the Contract Documents Such changes shall be effected by written order and shall be binding on the City and Contractor The Contractor shall carry out such written orders promptly 1.9.5 Changes Funded By Allowances 1.9.5 1 Allowances balances may be used to fund changes in the Work. The Contractor will not be allowed an overhead and profit mark-up when changes in the Work are funded by one of the Allowances 1.10 Prosecution and Progress. 1 10 1 TIME AND ORDER OF COMPLETION It is the meaning and intent of this Contract, unless otherwise herein specifically provided, that the CONTRACTOR shall be allowed to prosecute his Work at such times and seasons, in such order of precedence, and in such manner as shall be most conducive to economy of construction, provided, however, that the order and the time of prosecution shall be such that the Work shall be Substantially Completed as a whole and in part, in accordance with this Contract and the Contract Time; provided, also, that when the OWNER is having other work done, either by contract or by his own forces,the Architect may direct the time and manner of constructing the Work done under this Contract,so that conflict will be avoided and the construction of the various works being done for the OWNER shall be harmonized, and the CONTRACTOR shall fully cooperate and coordinate its Work with OWNER or such other contractors 1.10.1.1 The CONTRACTOR shall submit, an updated schedule with every pay estimate for review by the Architect, schedules which shall show the order in which the CONTRACTOR proposes to carry on the Work, with dates on which the CONTRACTOR will start the several parts of the work, and estimated dates of completion of the several parts Such schedules shall show completion of the Work within the Contract Time, and/or shall show such recovery efforts as CONTRACTOR intends to undertake in the event Substantial Completion of the Work is delayed. 1.10.12 EXTENSION OF TIME. The CONTRACTOR has submitted his Bid Proposal in full recognition of the time required for the completion of this Project,taking into consideration the average climatic range and industnal conditions prevailing in this locality, and has considered the liquidated damage provisions as hereinafter set forth, and that Contractor shall not be entitled to, nor will he request, an extension of time on this Contract, except as outlined in Paragraph 1 10 1 6, or by any other cause which the Architect shall decide justifies 31 the delay The CONTRACTOR shall give the Architect prompt notice, in writing and within three (3) days of the start of any such delay, of the cause of any such delay, and its estimated effect on the Work and the schedule for completion of the Work. Upon receipt of a written request for an extension of the Contract Time from the CONTRACTOR, supported by relevant and all requested documentation, the Architect shall submit such written request, together with his written recommendation, to the OWNER for consideration. If the delay is not attributable in whole or in part to any act or omission of CONTRACTOR, its subcontractors or suppliers, and if the OWNER determines that CONTRACTOR is entitled to an extension of time under the terms of the Contract, the OWNER shall grant an extension of time for Substantial Completion of the Work, sufficient to compensate for the delay, and such extension of time shall be CONTRACTOR's sole and exclusive remedy, except as may be otherwise provided herein. No extensions of Contract Time shall be made for delays occurring prior to the Contractor's mobilization as defined in the City's Specifications The Contract Time as defined in the Bid Proposal and other sections herein incorporates 40 Rain Days per calendar year or an average of 3.33 days per calendar month.The CONTRACTOR is required to keep record of all weather related delays and to submit the monthly count on each Pay Application. The Owner's Representative shall review and sign off on this record as a part of the Pay Application approval process every month. If, during preparation of the Balancing Change Order, the status of the work progress requires an extension of the Contract Time, Impact Days shall be added to the Completion Date equal to the total number of Weather or Impact Days approved less the original 40 days resident in the original Contract Time The Addition of Weather or Impact Days will only alter the Contract Time when added by Change Order If the Work is completed prior to the Completion Date, No Days will be added. The addition of Weather or Impact Days shall be the CONTRACTOR's sole remedy for delays to the completion of the Work and their addition to the Contract Time shall not affect the Contract Price through any "per diem" adjustment to the General Conditions costs, Temporary Facilities costs or any other costs associated with the extension of the Contract Time 1.10.13 HINDRANCES AND DELAYS In executing the Contract, the CONTRACTOR agrees that in undertaking to complete the Work within the time herein fixed, he has taken into consideration and made allowances for all interference, disruption, hindrances and delays incident to such Work, whether growing out of delays in securing material, workmen or otherwise No claim shall be made by the CONTRACTOR for damages, loss, costs or expense resulting from interference, disruption, hindrances or delays from any cause during the progress of any portion of the Work embraced in this Contract, except where the Work is stopped or suspended by order of the OWNER'S representative and such stoppage or suspension is not attributable to any act or omission of CONTRACTOR. 32 1.10.14 SUSPENSION OF WORK. OWNER may, without cause, order the CONTRACTOR in writing to suspend the Work, in whole or in part, for such period of time as OWNER may request. The Contract Price and/or Contract Time shall be adjusted for any increase in the cost of or the time required for performance of the Work caused by such suspension.No adjustment shall be made to the extent performance was or would have been suspended by a cause for which CONTRACTOR is responsible, or to the extent an adjustment is made or denied under another provision of the Contract Documents. 1.10.15 CHANGE OF CONTRACT TIME The Contract Time may only be changed by a Change Order Any claim for an adjustment of Contract Time shall be based on written notice delivered by the party making such claim to the other party and to the Architect promptly, but in no event later than ten (10) days after the event-giving rise to the claim.Notice of the extent of the claim, along with supporting data, shall be delivered within thirty (30) days of the occurrence and shall be accompanied by the claimant's written representation that the adjustment claimed is the entire adjustment to which the claimant has reason to believe it is entitled as a result of the occurrence of said event. All claims for adjustment in Contract Time shall be determined by the ARCHITECT in accordance with the requirements of this paragraph. Contractor shall submit, as a minimum, the following data. A. Information showing that the time requested is not included in the existing Contract and in addition to the Contract. B Information documenting that the number of days requested is accurate for the event. C Revised, current construction schedule showing that the time requested affects the project's critical path. 1.10.1.6 DELAYS BEYOND OWNER'S AND CONTRACTOR'S CONTROL Where CONTRACTOR is prevented from completing any part of the Work within the Contract Time due to delays beyond the control of the OWNER and the CONTRACTOR, including, but not limited to, interference by utility owners or other contractors performing other work, Contractor shall be entitled to an extension of the Contract Time in an amount equal to the time lost. CONTRACTOR shall not be entitled to any increase in Contract Price as a result of such delays. IN NO EVENT SHALL OWNER BE LIABLE TO CONTRACTOR FOR DAMAGES ARISING OUT OF OR RESULTING FROM (i) Delays caused by, or within the control of, the CONTRACTOR, or (ii) Delays beyond the control of both parties including, but not limited to, interference by utility owners or other contractors performing other work, fires, floods, epidemics, abnormal weather conditions, acts of God, even if such delays are due in part to the negligence, other fault, breach of contract or warranty, violation of the Texas Deceptive Trade Act, or strict liability without regard to fault of OWNER. An 33 extension of Contract time shall be CONTRACTOR's sole and exclusive remedy for any such delays. Delays attributed to, and within the control of, a Subcontractor or Supplier shall be deemed to be delays within the control of the CONTRACTOR. 1.11 Payments and Completion 1 11 1 Contract Sum. 1.11.1.1 The Contract Sum is stated in the Agreement and, including authorized adjustments, is the total amount payable by the City to the Contractor for performance of the Work under the Contract Documents 1 11.2 Schedule of Values 1.112.1 Before the first Application for Payment, the Contractor shall submit to the Architect a Schedule of Values fairly allocating the various portions of the Work, prepared in such form and supported by such data to substantiate its accuracy as reasonably required by the Architect. Once approved by the Architect and updated for changes in the Work, the Schedule of Values shall be used as a basis for reviewing the Contractor's Applications for Payment and is not to be taken as evidence of market or other value The Schedule of Values shall not overvalue early job activities. The Contractor's Fee shall be shown as a single separate item. The Schedule of Values shall follow the trade divisions of the Specification so far as practicable In order to facilitate the review of Applications for Payment, the Schedule of Values shall be submitted on forms approved by the Owner, and shall include the following. (a) Contractor's costs for Contractor's Fee, bonds and insurance,mobilization, etc , shall be listed as individual line items (b) Contractor's costs for various construction items shall be detailed. For example, concrete work shall be subdivided into footings, grade beams, floor slabs, paving, etc. These subdivisions shall appear as individual line items (c) On major subcontracts, such as mechanical, electrical and plumbing, the Schedule of Values shall indicate line items and amounts in detail (for example underground,major equipment,fixtures,installation of fixtures,start up, etc ) (d) Costs for subcontract Work shall be listed without any addition of Contractor's costs for overhead,profit or supervision. (e) Where payment for stored materials may be requested prior to installation,material and labor shall be listed as separate line items. (t) Sample pages from an approved Schedule of Values are 34 included following this document. 1 11 3 Applications for Payment. 1.113.1 At the time specified in the Agreement,the Contractor shall submit to the Architect an itemized Application for Payment for operations completed m accordance with the Schedule of Values Such application shall be notarized, if required, and supported by such data substantiating the Contractor's right to payment as the City or Architect may require, such as copies of requisitions from Subcontractors and material suppliers, and reflecting retainage if provided for in the Contract Documents Unless otherwise agreed, the Contractor shall submit requests for payment through the City's project management software using the APPLICATION AND CERTIFICATE FOR PAYMENT, showing in detail the amounts requested, etc , as necessary All blank spaces must be completed and the signatures of the Contractor shall signify his attestation that said Application for Payment is true, accurate and complete By submitting its Application for Payment, the Contractor certifies that the individual signing the application is authorized to do so Additionally, if the Contractor prepares its Application for Payment, any supplemental supporting documentation should be provided and uploaded through the city project management software Applications for Payment may not include requests for payment for portions of the Work'for which the Contractor does not intend to pay to a Subcontractor or material supplier 1.1132 Unless otherwise provided in the Contract Documents, payments shall be made on account of materials and equipment delivered and suitably stored at the site for subsequent incorporation in the Work. If approved in advance by the City, payment may similarly be made for materials and equipment suitably stored off the site at a location agreed upon in writing. Payment for materials and equipment stored on or off the site shall be conditioned upon compliance by the Contractor with procedures satisfactory to the City to establish the City's title to such materials and equipment or otherwise protect the City's interest,and shall include the costs of applicable insurance, storage and transportation to the site for such materials and equipment stored off the site Applications for Payment shall separate references to any and all materials and/ or equipment that require separate payment for materials stored but not installed as individual line items These items shall be specifically identified in the Original Schedule of Values as well as where this material or equipment will be incorporated into the Work. 1.1133 Upon payment by the City of the invoiced cost, title to all such materials and equipment shall irrevocably pass to the City The Contractor warrants that title to all materials and equipment covered by an Application for Payment will pass to City upon the receipt of payment by the Contractor Such title shall be free and clear of all liens, claims, security interests or encumbrances No work, materials or equipment covered by an Application for Payment shall be subject to an agreement under which an interest is retained or encumbrance is attached by the seller, the Contractor, or other party 1.113.4 The Contractor warrants that title to all Work covered by an Application for Payment will pass to the City no later than the time of payment. The Contractor further warrants that upon submittal of an Application for Payment all Workfor 35 which Certificates for Payment have been previously issued and payments received from the City shall,to the best of the Contractor's knowledge, information and belief,be free and clear of liens, claims, security interests or encumbrances in favor of the Contractor, Subcontractors, material suppliers, or other persons or entities making a claim by reason of having provided labor, materials and equipment relating to the Work. Each Application for Payment shall be accompanied by a signed and notarized Partial Release of Lien/All Bills Paid affidavit specifically covering the Work performed and any materials and equipment included and billed in the accompanying Application for Payment. 1 11 4 Certificates for Payment. 1.114.1 The Application for Payment will be reviewed first by the Architect who will certify to the City that portion, if any, of the Application for Payment it has determined is properly due In the event that the Architect believes that payment should be withheld, in whole or in part, it will notify the City and Contractor of the basis of this view as provided in Subparagraph 1 11 5 1 1.1142 The issuance of a Certificate for Payment will constitute a representation by the Architect to the City, based on the Architect's evaluation of the Work and the data comprising the Application for Payment, that the Work has progressed to the point indicated and that, to the best of the Architect's knowledge, information and belief, the quality of the Work is in accordance with the Contract Documents. The foregoing representations are subject to an evaluation of the Work for conformance with the Contract Documents upon Substantial Completion, to results of subsequent tests and inspections, to correction of minor deviations from the Contract Documents prior to completion and to specific qualifications expressed by the Architect. The issuance of a Certificate for Payment will further constitute a representation that the Contractor is entitled to payment in the amount certified. However, the issuance of a Certificate for Payment will not be a representation that the Architect has (1) made exhaustive or continuous on-site inspections to check the quality or quantity of the Work, (2) reviewed construction means, methods, techniques, sequences or procedures, (3) reviewed copies of requisitions received from Subcontractors and material suppliers and other data requested by the City to substantiate the Contractor's right to payment, or (4) made examination to ascertain how or for what purpose the Contractor has used money previously paid on account of the Contract Sum. 1.11.43 The issuance of a Certificate of Payment shall constitute a recommendation to the City in respect to the amount to be paid. This recommendation is not binding on the City if City knows of other reasons under the Contract why payment should be withheld. 1.1144 The Architect will affix his signature to the same form described in Paragraph 1 11 4 1 to signify his certification of payment provided the application is otherwise satisfactory 1 11 5 Decisions to Withhold Certification. 1.115.1 The Architect may withhold a Certificate for Payment in whole or in part, to the extent reasonably necessary to protect the City, if in the Architect's opinion the representations to the City required by Paragraph 1 11 4.2 can not be made If the 36 Architect is unable to certify payment in the amount of the Application, the Architect will notify the Contractor and City as provided in Paragraph 1 11 4 1 If the Contractor and Architect cannot agree on a revised amount, the Architect will promptly issue a Certificate for Payment for the amount for which the Architect is able to make such representations to the City The Architect may also withhold a Certificate for Payment or, because of subsequently discovered evidence, may nullify the whole or a part of a Certificate for Payment previously issued, to such extent as may be necessary in the Architect's opinion to protect the City from loss for which the Contractor is responsible, including loss resulting from acts and omissions described in Paragraph 1 5.5.2., because of (a) defective Work not remedied, (b) third party claims filed or reasonable evidence indicating probable filing of such claims unless security acceptable to the City is provided by the Contractor; (c) failure of the Contractor to make payments properly to Subcontractors or for labor,materials or equipment; (d) reasonable evidence that the Work cannot be completed for the unpaid balance of the Contract Sum, (e) damage to the City or another contractor; (f) reasonable evidence that the Work will not be completed within the Contract Time, and that the unpaid balance would not be adequate to cover actual or liquidated damages for the anticipated delay; or (g) persistent failure to carry out the Work in accordance with the Contract Documents 1.1152 When the above reasons for withholding certification are removed, certification will be made for amounts previously withheld. 1 11 6 Progress Payments 1.11.6.1 After the Architect has issued a Certificate for Payment, the City shall make payment in the manner and within the time provided in the Contract Documents, and shall so notify the Architect. If the City believes the Contractor is not current in its legitimate obligations to suppliers, laborers and/or Subcontractors on the Project, City may(but is not obligated to)withhold payment until it receives partial or final releases, or other reasonable proof from the Contractor that this situation does not exist. 1.11.62 The Contractor shall promptly pay each Subcontractor, upon receipt of payment from the City, out of the amount paid to the Contractor on account of such Subcontractor's portion of the Work, the amount to which said Subcontractor is entitled,reflecting percentages actually retained from payments to the Contractor on account of such Subcontractor's portion of the Work.The Contractor shall,by appropriate agreement 37 with each Subcontractor, require each Subcontractor to make payments to Sub- subcontractors in a similar manner City is not obligated to monitor payments to Subcontractors or Sub-subcontractors, and nothing in this paragraph shall create any right on the part of a Subcontractor or Sub-subcontractor against City 1.11.63 Neither the City nor Architect shall have an obligation to pay or to see to the payment of money to a Subcontractor or Sub-subcontractor 1.11.64 Payment to material suppliers shall be treated in a manner similar to that provided in Paragraphs 1 11 6.2 , 1 11 6.3 and 1 11 6 4 1.11.65 A Certificate for Payment, a progress payment, or partial or entire use or occupancy of the Project by the City shall not constitute acceptance of Work not in accordance with the Contract Documents 1 11 7 Failure of Payment. 1.11.7.1 If the City incurs any costs and expenses in curing any default of the Contractor or correcting defective Work,the City shall have an absolute right to offset such amount against the Contract Sum under this Contract, and may, in the City's sole discretion, elect either to (1) deduct an amount equal to that to which the Owner is entitled, or(2) issue a written notice to the Contractor reducing the GMP by an amount equal to that to which the Owner is entitled. 1 11 8 Substantial Completion. 1.11.8.1 When the Contractor considers that the Work, or a portion thereof which the City agrees to accept separately, is substantially complete, the Architect and City shall review the punch list prepared by Contractor and supplement the list as necessary Failure to include an item on such list does not alter the responsibility of the Contractor to complete all Work in accordance with the Contract Documents. 1.11.8.1.1 The Contractor's superintendent shall participate in the preparation of the Contractor's punch list that is submitted to the Architect and City for supplementation. Upon receipt,the Architect shall perform a spot review to determine the adequacy and completeness of the Contractor's punch list. Should the Architect determine that the Contractor's punch list lacks sufficient detail or requires extensive supplementation, the punch list will be returned to the Contractor for further inspection and revision.The date of Substantial Completion will be delayed until the punch list submitted is a reasonable representation of the work to be done 1.11.8.12 Upon receipt of an acceptable Contractor's punch list, the Contractor's superintendent shall accompany the Architect, its Consultants and the City(at its discretion)during their inspections and the preparation of their supplements to the Contractor's punch list. The superintendent shall record or otherwise take note of all supplementary items. The Architect will endeavor to furnish to the Contractor typed, hand wntten or recorded supplements to the 38 punch list in a prompt manner; however, any delay in the Contractor's receiving said supplements from the Architect shall not be cause for a claim for additional cost or extension oftime 1.11.82 When the Contractor notifies Architect that it has completed or corrected items on the punch list, the Architect will make an inspection to determine whether the Work or designated portion thereof is substantially complete If the Architect's inspection discloses any item,whether or not included on the Contractor's punch list,which is not sufficiently complete in accordance with the Contract Documents so that the City can occupy or utilize the Work or designated portion thereof for its intended use, the Contractor shall,before issuance of the Certificate of Substantial Completion, complete or correct such item upon notification by the Architect. In such case, the Contractor shall then submit a request for another inspection by the Architect to determine Substantial Completion. Any further inspections by the Architect for the purpose of determining the Project is Substantially Complete shall be at Contractor's cost and the City may deduct such cost from any amount payable to Contractor hereunder 1.11.83 When the Work or designated portion thereof is substantially complete, the Architect will prepare a Certificate of Substantial Completion which shall establish the date of Substantial Completion, shall establish responsibilities of the City and Contractor for security, maintenance, heat,utilities, damage to the Work and insurance, and shall fix the time within which the Contractor shall finish all items on the list accompanying the Certificate Warranties required by the Contract Documents shall commence on the date of Substantial Completion of the Work or designated portion thereof unless otherwise provided in the Certificate of Substantial Completion. 1.11.84 The Certificate of Substantial Completion shall be submitted to the City and Contractor for their wntten acceptance of responsibilities assigned to them in such Certificate Upon such acceptance and consent of surety, if any, the City, in its sole discretion, may make payment of retainage, or a portion thereof as determined in the City's sole discretion, applying to such Work or designated portions thereof. Such payment shall be adjusted for Work that is incomplete or not in accordance with the requirements of the Contract Documents 1.11.85 Upon final completion of all remaining outstanding or incomplete work, identified in the Certificate of Substantial Completion, the Architect shall issue a Certificate of Final Completion and Acceptance Upon such issuance,the City shall release all remaining retamage, if any 1.11.8.6 The Contractor shall keep all required insurance in full force, and provide payment for all utilities, until the Certificate of Substantial Completion and Acceptance is issued, and all Work is accepted by the City in writing, regardless of the stated date of Substantial Completion. Such Acceptance shall not be unreasonably withheld. Contractor shall provide City a minimum of ten (10) days wntten notice of Contractor's planned utility contract termination date 1 11.9 Partial Occupancy or Use 39 1.11.91 The City may occupy or use any completed or partially completed portion of the Work at any stage when such portion is designated by separate agreement with the Contractor,provided such occupancy or use is consented to by the insurer as required under Paragraph 1 13 3 1 and authorized by public authorities having jurisdiction over the Work. Such partial occupancy or use may commence whether or not the portion is substantially complete,provided the City and Contractor have accepted in writing the responsibilities assigned to each of them for payments,retainage,if any,security, maintenance, heat,utilities, damage to the Work and insurance, and have agreed in writing concerning the period for correction of the Work and commencement of warranties required by the Contract Documents 1.11.92 Immediately prior to such partial occupancy or use, the City, Contractor and Architect shall jointly inspect the area to be occupied or portion of the Work to be used in order to determine and record the condition of the Work. 1.11.93 Unless otherwise agreed upon,partial occupancy or use of a portion or portions of the Work shall not constitute acceptance of Work not complying with the requirements of the Contract Documents 1 11 10 Final Completion and Final Payment. 1.11.10.1 Upon City's receipt of written notice that the Work is ready for final inspection and acceptance and upon receipt of a final Application for Payment, the Architect will promptly make such inspection and, when the Architect finds the Work acceptable under the Contract Documents and the Contract fully performed, the Architect will promptly issue a final Certificate for Payment stating that to the best of the Architect's knowledge, information and belief, and on the basis of the Architect's on-site visits and inspections, the Work has been completed in accordance with terms and conditions of the Contract Documents and that the entire balance found to be due the Contractor and noted in the final Certificate is due and payable The Architect's final Certificate for Payment will constitute a further representation that conditions listed in Paragraph 1 11 10.2 as precedent to the Contractor's being entitled to final payment have been fulfilled. Prior to final payment, the Contractor shall submit to the Architect the following completed forms (a) Contractor's Affidavit of Payment of Debts and Claims, (b) Contractor's Affidavit of Release of Liens, (c) Consent of Surety to Final Payment (if applicable), (d) Subcontractor's Unconditional Releases — each signed and notarized on a single piece ofpaper; (e) Maintenance and inspection manuals—three (3) sets of each bound in a 3 inch "D-slant"ringbinder; (f) Final list ofsubcontractors, 40 (g) one (1) complete set of marked-up copies of the Drawings and Specifications accurately showing the Project as constructed. Such Specifications and Drawings shall be marked to show all changes and modifications that have been incorporated into the Work as performed, (h) other data establishing payment or satisfaction of obligations, such as receipts,releases and waivers of liens, claims, secunty interests or encumbrances arising out of the Contract, to the extent and in such form as may be designated by the City;and (i) any other"Closeout Documents"required under the Contract Documents Documents identified as affidavits must be notarized. All manuals will contain an index listing the information submitted. The index sections will be divided and identified by tabbing each section as listed in the index. Upon request, the Architect will furnish the Contractor with blank copies of the forms listed above. Final payment, constituting the entire unpaid balance of the Contract Sum shall be paid by the City to the Contractor thirty(30) days after Substantial Completion of the Work,unless otherwise stipulated in the Certificate of Completion, provided the Contract is fully performed, and Final Certificate of Payment has been issued by the Architect. The City may accept certain portions of the Work as being complete prior to the acceptance of the entire Project. If certain areas are accepted by the City as being completed, and if the Contractor has completed all of the requirements for final payment of the portion of Work, the City may, but is not required to, release retainage for that area/portion of Work. Amounts of retainage shall be agreed upon by both City and Contractor prior to final acceptance of these areas 1.11.102 If, after Substantial Completion of the Work, final completion thereof is materially delayed through no fault of the Contractor or by issuance of Change Orders affecting final completion, and the Architect so confirms, the City shall, upon application by the Contractor and certification by the Architect, and without terminating the Contract,make payment of the balance due for that portion of the Work fully completed and accepted. If the remaining balance for Work not fully completed or corrected is less than retainage stipulated in the Contract Documents, and if bonds have been furnished, the written consent of surety to payment of the balance due for that portion of the Work fully completed and accepted shall be submitted by the Contractor to the Architect prior to certification of such payment. Such payment shall be made under terms and conditions governing final payment, except that it shall not constitute a waiver of claims 1.11.103 Acceptance of final payment by the Contractor shall constitute a waiver of claims by Contractor except for any Claims then pending that comply with the requirements of Paragraph 1 6.3 1.12 Protection of Persons and Property 1 12.1 Safety Precautions and Programs 1 12.1 1 The Contractor shall be responsible for initiating, maintaining and supervising all necessary safety precautions and programs in connection with the 41 performance of the Contract. 1 12.2 Safety of Persons and Property 1 12.2.1 The Contractor shall take reasonable precautions for safety of, and,shall provide reasonable protection to prevent damage, injury or loss to (a) employees on the Work and other persons who may be affected thereby including but not limited to the City's employees, invitees and the general public, I (b) the Work and materials and equipment to be incorporated therein, whether in storage on or off the site, under care, custody or control of the Contractor or the Contractor's Subcontractors or Sub-subcontractors, and (c) other property at the site or adjacent thereto, such as trees, shrubs, lawns, walks, pavements, roadways, structures and utilities not designated for removal, relocation or replacement in the course of construction. 1 12.2.2 The Contractor shall give notices and comply with applicable laws, ordinances, rules,regulations and lawful orders of public authorities bearing on safety of persons or property or their protection from damage, injury or loss 112.2.3 The Contractor shall erect and maintain, as required by existing conditions and performance of the Contract, reasonable safeguards for safety and protection,including posting danger signs and other warnings against hazards,promulgating safety regulations and notifying owners and users of adjacent sites and utilities 112.2.4 When use or storage of explosives or other hazardous materials or equipment or unusual methods are necessary for execution of the Work, the Contractor shall exercise utmost care and carry, on such activiti,es under supervision of properly qualified personnel. When use or storage of explosives or other hazardous materials or equipment or unusual construction methods are necessary, the Contractor shall give the City and Architect reasonable advance notice of the presence or use of such materials, equipment or methods. 1 12.2.5 The Contractor shall promptly remedy damage and loss(other than damage or loss insured under property insurance required by the Contract Documents) to property referred to in Paragraphs 1 12.2 1(b) and 1 12.2 1 (c) caused in whole or in part 42 by the Contractor, a Subcontractor, a Sub-subcontractor, or anyone directly or indirectly employed by any of them, or by anyone for whose'acts they may be liable and for which the Contractor is responsible under Paragraphs 1 12.2 1, except damage or loss attributable to acts or omissions of the City or Architect or anyone directly or indirectly employed by either of them, or by anyone for whose acts either of them may be liable, and not attributable to the fault or negligence of the Contractor The foregoing obligations of the Contractor are in addition to the Contractor's obligations under Paragraph 1.5 19 6 1.12.2.6 The Contractor shall designate a responsible member of the Contractor's organization at the site whose duty hall be the prevention of accidents. This person shall be the Contractor's superintendent unless otherwise designated by the Contractor in writing to the Owner and Architect. 1 12.2.7 The Contractor shall not load or permit any part of the construction or site to be loaded so as to endanger its safety 1 12.2.8 Suspension of all or a portion of the Work,for any reason, shall not relieve the Contractor of its obligations under Paragraph 1 12.2 112.2.9 The Contractor shall promptly report in writing to the City and Architect all accidents arising out of or in connection with the Work which cause death, personal injury, or property damage, giving full details and statement of any witnesses. In addition, if death, serious personal injuries, or serious property damages are caused, the accident shall be reported immediately by telephone or messenger to City and Architect. 1.12.2.10 The Contractor shall be responsible for the protection and security of the Work and the Project,until it receives written notification that the Substantial Completion of the Work has been accepted by the City unless otherwise provided in the Certificate of Substantial Completion. 1 12.3 Hazardous Materials 1 12.31 Contractor agrees that it shall not transport to, use, generate, dispose of, or install at the Project site any Hazardous Substance (as defined in 1 12.3 1.3 ), except in accordance with applicable Environmental Laws.Further,in performing the Work, Contractor shall not cause any release of Hazardous Substances into, or contamination of, the environment, including the soil, the atmosphere, any water course or ground water, except in accordance with applicable Environmental Laws (as hereafter defined at Paragraph 1 12.3 1 3) In the event Contractor engages in any of the activities prohibited in this Paragraph 1 12.3 1 to the fullest extent permitted by law, Contractor hereby indemnifies and holds City, Architect and all lof their respective officers, agents and employees harmless from and against any and all claims, damages, losses, causes of action, suits, and liabilities of every kind, including, but not limited to, expenses of litigation, court costs, punitive damages and attorneys' fees, arising out of, incidental to or resulting from the activities prohibited in this Paragraph 1.12.3. 112.3.2 In the event Contractor encounters on the Project site any Hazardous Substance, or what Contractor may 'reasonably believe to be a Hazardous Substance, and which is being introduced to the Work, or exists on the Project site, in a 43 manner violative of any applicable Environmental Laws, Contractor shall immediately stop work in the area affected and report the condition to City and Architect in writing. The Work in the affected area shall not thereafter be resumed except by written authorization of City if in fact a Hazardous Substance has been encountered and has not been rendered harmless In the event Contractor fails to stop the Work upon encountering a Hazardous Substance at the Project site, to the fullest extent permitted by law, Contractor hereby indemnifies and holds City, Architect and all of their respective officers, agents and employees harmless from and against any and all claims,damages,losses,causes of action,suits,and liabilities of every kind, including, but not limited to, expenses of litigation, court costs, punitive damages and attorneys' fees, arising out of, incidental to or resulting from Contractor's failure to stop the Work. 1 12.33 City and Contractor may enter into a separate agreement and/or Change Order for Contractor to remediate and/or render harmless pre-existing Hazardous Substances, but Contractor shall not be required to remediate and/or render harmless the Hazardous Substance absent such agreement. Contractor shall not be required to resume work in any area affected by the Hazardous Substance until such time as the Hazardous Substance has been remediated and/or rendered harmless. Contractor shall be solely responsible for all costs of remediation associated with Hazardous Substances imported, with or without Owner's knowledge, to the work site by Contractor or any Subcontractor 1 12.3 4 For purposes of this Agreement, the term "Hazardous Substance" shall mean and include any element constituent, chemical, substance, compound, or mixture, which are defined as a hazardous substance by any local, state or federal law, rule, ordinance, by-law, or regulation pertaining to environmental regulation, contamination, clean-up or disclosure, including, without limitation, The Comprehensive Environmental Response, Compensation and Liability Act ("CERpLA"), The Resource Conservation and Recovery Act("RCRA"), The Toxic Substances Control Act("TSCA"), The Clean Water Act ("CWA"), The Clean Air Act ("CAA"), the Marine Protection Research and Sanctuaries Act ("MPRSA"), The Occupational Safety and Health Act ("OSHA"), The Superfund Amendments and Reauthonzation Act of 1986 "SARA"), or other state superhen or environmental clean-up or disclosure statutes including all state and local counterparts of such laws (all such laws,rules and regulations being referred to collectively as"Environmental Laws") It is the Contractor's responsibility to comply with Paragraph 1 12 3 1 based on the law in effect at the time its services are rendered and to comply with any amendments to those laws for all services rendered after the effective di to of any such amendments. 112.4 Emergencies 1 12.41 In an emergency affecting safety of persons or property, the Contractor shall act, at the Contractor's discretion, to prevent threatened damage, injury or loss.Additional compensation or extension of time claimed by the Contractor on account of an emergency shall be determined as provided in Paragraph 1 6.3 and Paragraph 1 9 1.13 Insurance and Bonds 44 1 13 1 Contractor's Liability Insurance 1 13 1 1 The Contractor shall purchase and maintain insurance as shown in ATTACHMENT 1, OWNER'S INSURANCE REQUIREMENTS OF CONTRACTOR and specific project related insurance requirements as noted in ATTACHMENT 2, SPECIAL CONDITIONS OF THE AGREEMENT 1 13.2 Certificates of Insurance. 1 13.2.1 Certificates of Insurance shall be prepared and executed by the insurance company or its authorized agent and must be provided in accordance with Section 1 13 1 1 1 and are attached as EXHIBIT A, Contractor's Insurance Certificates including Builder's Risk. 1 13.3 Property Insurance 1 13.31 Partial occupancy or use in accordance with Paragraph 1 11 9 shall not commence until the insurance company or companies providing property insurance have consented to such partial occupancy or use by endorsement or otherwise The City and the Contractor shall take reasonable steps to obtain consent of the insurance company or companies and shall, without mutual written consent, take no action with respect to partial occupancy or use that would cause cancellation, lapse or reduction of insurance 1 13.3.2 Loss of Use Insurance The City, at the City's option, may purchase and maintain such insurance as will insure the City against loss of use of the City's property due to fire or other hazards,however caused. 1 13.3.3 If the Contractor requests in writing that insurance for risks other than those described herein or other special causes of loss be included in the property insurance policy,the City shall, at City's option,include such insurance, and the cost thereof shall be charged to the Contractor by appropriate Change Order 1 13.3 4 If during the Project construction period the City insures properties, real or personal or both, at or adjacent to the site by property insurance under policies separate from those insuring the Project, or if after final payment property insurance is to be provided on the completed Project through a policy or policies other than those insuring the Project during the construction period, the City shall waive all rights for damages caused by fire or other causes of loss covered by this separate property insurance. All separate policies shall provide this waiver of subrogation by endorsement or otherwise. 113.3.5 A loss insured under City's property insurance shall be adjusted by the City and made payable to the City for the insureds, as their interests may appear, subject to requirements of Paragraph 1 13 3 The Contractor shall pay Subcontractors their just shares of insurance proceeds received by the Contractor, and by appropriate agreements, written where legally required for validity, shall require Subcontractors to make payments to their Sub-subcontractors in similar manner 1 13.3.6 If after such loss no other special agreement is made and unless the City terminates the Contract for convenience, replacement of damaged property shall be 45 performed by the Contractor after notification of a Change in the Work in accordance with Paragraph 1 9 1 13 4 Performance Bond and Payment Bond. 1 13 41 Pursuant to Chapter 2253 of the Texas Government Code, for all public works contracts with governmental entities,performance and payment bonds are required when the Contract Sum exceeds $50,000 In the event a performance or payment bond or both is required either by law or in the City's discretion, such bonds shall be executed in accordance with all requirements of Article 7 19-1 of the Texas Insurance Code, all other applicable law, and the following. (a) The Contractor shall execute performance and payment bonds for the full Contract Sum in the forms attached hereto as Exhibit B and C (b) The bond surety shall be authorized under the laws of the State of Texas to provide a performance and payment bond and shall have attached proof of authorization of the surety to act in the performance and payment of bonds (c) The Contractor shall provide original, sealed, and complete counterparts of the executed bonds in the forms required by the Contract Documents, which are attached as Exhibit B and C, together with valid original powers of attorney, at the time of execution of this Agreement and prior to the commencement of Work. Copies of the executed bonds shall be attached hereto as Exhibit B and C (d) The performance and payment bonds shall remain in effect for a period of one (1) year after Final Completion of the Work and shall be extended for any warranty work to cover the warranty period. (e) If at any time during the execution of this Agreement in the required period thereafter, the bond or bonds become invalid or ineffective for any reason, the Contractor shall promptly supply within ten (10) days such other bond or bonds,which bond or bonds shall assure performance or payment as required. 1 13 4.2 The Contractor may make such changes and alterations as the City may require in the Work or any part thereof without affecting the validity of this Agreement and any accompanying bond.If such changes or alterations diminish the quantity of the Work to be done, they shall not constitute the basis for any claim for damages or anticipated profits. If the City makes changes or alterations that render useless any Work already done or material already used in said Work, then the City shall compensate the Contractor for any material or labor so used, and for any actual loss occasioned by such change due to actual expenses incurred in preparation for the work as originally planned. 1.14 Uncovering and Correction of Work. 1 141 Uncovering of Work. 46 1 141 1 If a portion of the Work is covered contrary to the Architect's request, required inspection, or contrary to requirements in the Contract Documents, the Work must, if required in writing by the Architect, be uncovered for the Architect's examination or inspection of the work and be replaced at the Contractor's expense without change in the ContractTime 1 141.2 If a portion of the Work has been covered which the Architect has not specifically requested to examine prior to its being covered, the Architect may request to see such Work and it shall be uncovered by the Contractor If such Work is in accordance with the Contract Documents, costs of uncovering and replacement shall, by appropriate Change Order, be at the City's expense If such Work is not in accordance with the Contract Documents, correction shall be at the Contractor's expense 1 14.2 Correction of Work. 1 14.2.1 Before or After Substantial Completion. 1 14.2 1 1 The Contractor shall promptly correct Work rejected by the Architect or failing to conform to the requirements of the Contract Documents, whether discovered before or after Substantial Completion and whether or not fabricated, installed or completed. Costs of correcting such rejected Work, including additional testing and inspections and compensation for the Architect's services and expenses made necessary thereby, shall be at the Contractor's expense 1 14.2.2 After Substantial Completion. 1 14.2.2 1 In addition to the Contractor's obligations under Paragraph 1.5 7 , if, within one year after the date of Substantial Completion of the Work or designated portion thereof or after the date for commencement of warranties established under Paragraph 1 11 9 1 , or by terms of an applicable special warranty required by the Contract Documents, any of the Work is found to be not in accordance with the requirements of the Contract Documents, the Contractor shall correct it promptly after receipt of written notice from the City to do so unless the City has previously given the Contractor a written acceptance of such particular condition. The City shall give such notice promptly after discovery of the condition. If the Contractor fails to correct nonconforming Work within a reasonable time during that period after receipt of notice from the City or Architect, the City may correct it in accordance with Paragraph 1 4 5 The "prompt" correction of defective work by the Contractor after receipt of notification from the City as described above shall be defined as follows (a) The Contractor shall make wntten response to the City within twenty-four(24)hours of receipt of the City's notice, acknowledging receipt of the notice and providing an estimated schedule to conduct corrective work. Corrective work shall not interfere with the City's normal operation and use of the Project,unless expressly approved by the City; 47 (b) For corrective work which is not a life safety issue or which will not, by the nature of the defect, cause subsequent damage to the Project, corrective work shall be completed within fourteen(14)calendar days, (c) For corrective work which by its nature may cause subsequent damage to the Project, corrective work required to prevent subsequent damage shall be completed within twenty-four (24) hours, and if such work is a temporary repair,permanent repair of the corrective work shall be completed within seven (7) calendar days The Contractor shall also correct all subsequent damage caused by such corrective work, (d) For corrective work which affects services to, and ordinary use of the Project, corrective work shall be completed within twenty-four (24) hours, and if such work is a temporary repair, permanent repair of the corrective work shall be completed within seven(7) calendar days, and (e) The time frames stated above for completion of permanent corrective work shall be equitably adjusted as required for legitimate delays caused by weather delays, material acquisition and other factors beyond the Contractor's direct control. 1.14777 The one-year period for correction of Work shall be extended with respect to portion(s) of Work first performed after Substantial Completion by the period of time between Substantial Completion and the actual performance of the Work. 1.14773 These obligations under Subparagraph 1 14.2.2. shall survive acceptance of the Work under the Contract and termination of the Contract. The period for any Work corrected pursuant to Paragraph 1 14.2 shall be extended for a penod of one year after the date said corrective work is completed. 1.14.23 The Contractor shall remove from the site portions of the Work which are not in accordance with the requirements of the Contract Documents and are neither corrected by the Contractor nor accepted by the City 1.1424 The Contractor shall bear the cost of correcting destroyed or damaged construction, whether completed or partially completed, of the City or separate contractors caused by the Contractor's correction or removal of Work which is not in accordance with the requirements of the Contract Documents. 1 14.2 4 1 Where non-conforming Work is found, the entire area of Work involved shall be corrected unless the Contractor can completely define the limits to the Architect's satisfaction. Additional testing, sampling, or inspecting needed to define nonconforming Work shall be at the Contractor's expense, and performed by the City's testing laboratory if such services are reasonably required by the Architect. All corrected Work shall be retested at the Contractor's expense Additional architectural or other services 48 required to analyze non-conforming Work shall be paid for by the Contractor 1.1425 Nothing contained in Paragraph 1 14.2 shall be construed to establish a period of limitation with respect to other obligations which the Contractormight have under the Contract Documents.Nothing contained in Paragraph 1 14.2 is intended to limit or modify any obligations under the law or under the Contract Documents, including any warranty obligations, expressed or implied. 1 14 3 Acceptance of Nonconforming Work. 1 14 3 1 If the Owner prefers to accept Work which is not in accordance with the requirements of the Contract Documents, the City may do so instead of requiring its removal and correction, in which case the Contract Sum will be reduced as appropriate and equitable Such adjustment shall be effected whether or not final payment has been made 1.15 Miscellaneous Provisions. 1 15 1 Governing Law 1 15 1 1 This Contract and any disputes related to the Work shall be governed by the law of the State of Texas, and any disputes shall be resolved in Brazoria County, Texas. 1 15.2 Successors and Assigns. 1 15.2.1 The City and Contractor respectively bind ,themselves, their partners, successors, assigns and legal representatives to the other party hereto and to partners, successors, assigns and legal representatives of such other party in respect to covenants, agreements and obligations contained in the Contract Documents. Contractor shall not assign the Contract as a whole, or in part, without written consent of the City If either party attempts to make such an assignment without such consent, that party shall nevertheless remain legally responsible for all obligations under the Contract. 1 15.3 Written Notice 1 15.3 1 Written notice shall be deemed to have been served only if the writing is delivered to the addressees set out below, or to such other address as has been previously clearly identified in writing by the addressee, or if delivered by mail or in form of electronic transmission to that office,or sent by registered or certified mail to that address. City• City of Pearland 3519 Liberty Drive Pearland, Texas 77581 Attn Engineering & CapitalProjects 49 Contractor Teal Construction Company 1335 Brittmoore Houston, Texas 77043 1 15 4 1 No action or failure to act by the City, Architect or Contractor shall constitute a waiver of a right or duty afforded them under the Contract, nor shall such action or failure to act constitute approval of or acquiescence in a breach thereunder, except as may be specifically agreed in writing. 1 15.5 Tests and Inspections 1 15.5 1 Tests, inspections and approvals of portions of the Work required by the Contract Documents or by laws, ordinances, rules, regulations or orders of public authorities having jurisdiction shall be made at appropriate times. Unless otherwise provided, the Contractor shall make scheduling arrangements for such tests, inspections and approvals with an independent testing laboratory employed by the City for this purpose, or with the appropriate public authority City shall bear the normal costs of these services, but not any excess costs attributable to Contractor-caused scheduling problems, or other Contractor error The Contractor shall give the Architect timely notice of when and where tests and inspections are to be made so the Architect may observe such procedures 1 15.5.2 If the Architect, City or public authorities having jurisdiction determine that portions of the Work require additional testing, inspection or approval not included under Paragraph 1 15 5 1 , the Architect will, upon written authorization from the City, instruct the Contractor to make arrangements for such additional testing, inspection or approval by an entity acceptable to the City, and the Contractor shall give timely notice to the Architect of when and where tests and Inspections are to be made so that the Architect may be present for such procedures Such costs, except as provided in Paragraph 1 15.5.3 , shall be at the City's expense 1 15.5.3 If such procedures for testing, inspection or approval under Paragraphs 1 15 5 1 and 1 15 5.2 reveal failure of the portions of the Work to comply with requirements established by the Contract Documents, all costs made necessary by such failure including those of repeated procedures and compensation for the Architect's services and expenses shall be at the Contractor's expense Required certificates of testing, inspection or approval shall, unless otherwise required by the Contract Documents, be kept and logged by the Contractor in the city project management software. All testing reports will be made available to all parties. 1 15.5 4 If the Architect is to observe tests, inspections or approvals required by the Contract Documents, the Architect will do so promptly and,where practicable, at the normal place of testing. 50 115.5.5 Tests or inspections conducted pursuant to the Contract Documents shall be made promptly to avoid unreasonable delay in the Work. 1.16 Termination or Suspension of theContract. 1 161 Termination by the Contractor 1 161 1 The Contractor may terminate the Contract if the Work is stopped for a period of ninety (90) consecutive days through no act or fault of the Contractor or a Subcontractor, Sub-subcontractor or their agents or employees or any other persons or entities performing portions of the Work under direct or indirect contract with the Contractor, for any of the following reasons (a) issuance of an order of a court or other public authority having jurisdiction which requires all Work to be stopped, (b) an act of government, such as a declaration of national emergency which requires all Work to be stopped, or (c) because the Architect has not issued a Certificate for Payment and has not notified the Contractor of the reason for withholding certification as provided in Paragraph 1 11 4 1 , or because the City has not made payment on a Certificate for Payment within the time stated in the Contract Documents, provided notice is given as required under Subparagraph 1 11 4 1 1 16.1.2 The Contractor may terminate the Contract if, through no act or fault of the Contractor or a Subcontractor,Sub-subcontractor or their agents or employees or any other persons or entities performing portions of the Work under direct or indirect contract with the Contractor, repeated suspensions, delays or interruptions of the entire Work by the City as described in Paragraph 1 16.3 constitute in the aggregate more than 100 percent of the total number of days scheduled for completion, or 120 days in any 365- day period, whichever is less 1 16 1.3 If the Work is stopped for ninety (90) consecutive days for any reason described in Paragraph 1 16 1 1 or 1 16 1.2 , the Contractor may, upon fourteen (14) days' written notice to the City and Architect, terminate the Contract and recover from the City payment for Work. 1 16.14 Notwithstanding anything to the contrary contained herein or in the other Contract Documents, the City shall not be responsible for damages for loss of anticipated profits on Work not performed on account of any termination described in Subparagraphs 1 16 1 1 , 1 1-6 1.2 , and 1 16 1.3 1 16.2 Termination by the Owner forCause 1 16.2.1 The City may terminate the Contract if the Contractor (a) refuses or fails to supply enough properly skilled workers or proper materials, (b) fails to make payment to Subcontractors for materials or labor 51 in accordance with the respective agreements between the Contractor and the Subcontractors, (c) disregards laws, ordinances, or rules, regulations or orders of a public authority having jurisdiction, (d) otherwise is guilty of substantial breach of a provision of the Contract Documents, (e) fails to furnish the City, upon request, with assurances satisfactory to the City evidencing the Contractor's ability to complete the Work in compliance with all the requirements of the Contract Documents, (f) fails to proceed continuously and diligently with the construction and completion of the Work, except as permitted under the Contract Documents, or (g) fails to provide all required policies of insurance and/or bonds 1 16.2.2 When any of the above reasons exist, the City may without prejudice to any other rights or remedies of the City and after giving the Contractor andthe Contractor's surety, if any, seven days written notice of the specific default by Contractor and an opportunity to cure said default.If Contractor fails to cure default, after an additional seven day notice the Owner may terminate employment of the Contractor and may, subject to any prior rights of the surety. (a) take possession of the site and of all materials, equipment, tools,and construction equipment and machinery thereon owned by the Contractor; (b) accept assignment of subcontracts pursuant to Paragraph 1 7 4, (c) Make demand upon Contractor's surety to complete the Work; and (d) finish the Work by whatever reasonable method the City 52 may deem expedient. 1 16.2.3 When the City terminates the Contract for one of the reasons stated in Paragraph 1 16.2 1,the Contractor shall not be entitled to receive further payment until the Work is finished. 1 16.2.4 If the unpaid balance of the Contract Sum exceeds costs of finishing the Work, including compensation for the Architect's services and expenses made necessary thereby, and other damages incurred by the City and not expressly waived, including attorney's fees, such excess shall be paid to the Contractor If such costs and damages exceed the unpaid balance, the Contractor shall pay the difference to the City This obligation for payment shall survive termination of the Contract. 1 16.2.5 If a Performance Bond has been furnished and the Contractor is declared by the City to be in default under the Contract, the Surety shall promptly, in no event to exceed 30 days,remedy the default by commencing and continuing to perform the remaining work of the Contract in accordance with its terms and conditions, or by obtaining a bid or bids in accordance with its terms and conditions At City's election,upon determination by the City and the Surety of the lowest responsible bidder, the Surety will complete the Work or will arrange for a Contract between such bidder and the City, and make available sufficient funds to pay the cost of completion less the balance of the Contract Sum, but not exceeding the Penal Sum of the bond. The phrase "balance of the Contract Sum"as used herein shall mean the total amount payable by the City to the Contractor under the Contract, including any adjustments thereto made in accordance with the terms and conditions of this Contract, and amendments thereto less the amount previously paid by the City to the Contractor 1 16.3 Suspension by the Owner for Convenience 1 16.3 1 The City may, without cause, and with seven days written notice, order the Contractor in writing to suspend, delay or interrupt the Work in whole or in part for such period of time as the City may determine 1 16.3.2 If City suspends the Contractor's performance for convenience, an adjustment shall be made to the Contract Sum as calculated under Paragraph 1 9 and shall include profit.No adjustment shall be made to the extent: (a) that performance is,was or would have been so suspended, delayed or interrupted by another cause for which the Contractor is responsible, or (b) that an equitable adjustment is made or denied under another provision of the Contract. 1 16 4 Termination by the Owner forConvenience. 1 16 4 1 The City may, at any time, terminate the Contract, in whole or in part, with seven days written notice, for the City's convenience and without cause 1 16 4.2 Upon receipt of written notice from the City of such termination for the City's convenience, the Contractor shall (a) cease operations as directed by the City in the notice, (b) take actions necessary, or that the City may direct, for the protection and preservation of the Work; and (c) except for Work not so terminated and/or directed to be performed prior to the effective date of termination stated in the notice, terminate all existing subcontracts and purchase orders and enter into no further subcontracts and purchase orders 1 16 4.3 In the event of a termination under Paragraph 1 16 4, the Contractor shall be paid the value of its Work to the date of termination plus such sums as are reasonably required to cover the cost to Contractor, its Subcontractors and suppliers, to shut down the Project. City shall not be responsible for damages for loss of anticipated profits on Work not performed on account of any termination. 1 16.4 4 Upon determination by a court of competent jurisdiction that termination of the Contract,pursuant to Paragraph 1 16.2 was wrongful, such termination will be deemed converted to a termination for convenience pursuant to Paragraph 1 16 4, and Contractor's remedy for wrongful termination shall be limited to the recovery of the payments permitted for termination for convenience as set forth in Paragraph 1 16 4 END OF GENERAL PROVISIONS SECTION 2 CONSTRUCTION MANAGER'S RESPONSIBILITIES The Construction Manager shall perform the services described in this Paragraph. The services to be provided under Paragraphs 2 1 and 2 2 constitute the Preconstruction Phase services If the City and Construction Manager agree, the Construction Phase may commence before the Preconstruction Phase is completed, in which case both phases will proceed concurrently 2.1 Preconstruction Phase. 21.1 Preliminary Evaluation. The Construction Manager shall provide a preliminary evaluation of the City's program and Project budget requirements, each in terms of the other 212 Consultation. The Construction Manager with the Architect shall jointly schedule and attend regular meetings with the City The Construction Manager shall consult with the City and Architect regarding site use and improvements and the selection of materials, building systems and equipment. The Construction Manager shall provide recommendations on construction feasibility; actions designed to minimize adverse effects of labor or material shortages, time requirements for procurement, installation and construction completion, and factors related to construction cost, including estimates of alternative designs or materials,preliminary budgets and possible economies 213 Preliminary Project Schedule When Project requirements described in Paragraph 3 1 1 have been sufficiently identified,the Construction Manager shall prepare, and periodically update, a preliminary Project schedule for the Architect's review and the City's approval. The Construction Manager shall coordinate and integrate the preliminary Project schedule with the services and activities of the City, Architect and Construction Manager As design proceeds, the preliminary Project schedule shall be updated to indicate proposed activity sequences and durations, milestone dates for receipt and approval of pertinent information,submittal of a Guaranteed Maximum Price proposal,preparation and processing of shop drawings and samples, delivery of materials or equipment requiring long-lead-time procurement, City's occupancy requirements showing portions of the Project having occupancy priority, and proposed date of Substantial Completion. If preliminary Project schedule updates indicate that previously approved schedules may not be met, the Construction Manager shall make appropriate recommendations to the City and Architect. 214 Phased Construction. The Construction Manager shall make recommendations to the City and Architect regarding the phased issuance of Drawings and Specifications to facilitate phased construction of the Work, if such phased construction is appropriate for the Project,taking into consideration such factors as economies, time of performance, availability of labor and materials, and provisions for temporary facihties 2.1.4.1 Preliminary Cost Estimates When the City has sufficiently identified the Project requirements and the Architect has prepared other basic design criteria, the Construction Manager shall prepare, for the review of the Architect and approval of the City, a preliminary cost estimate utilizing area,volume or similar conceptual estimating techniques 2.1.4.1.1 When Schematic Design Documents have been prepared by the Architect and approved by the City, the Construction Manager shall prepare, for the review of the Architect and approval of the City,a more detailed estimate with supporting data.During the preparation of the Design Development Documents, the Construction Manager shall update and refine this estimate at appropriate intervals agreed to by the City, Architect and Construction Manager 2.1.4.1.2 When Design Development Documents have been prepared by the Architect and approved by the City, the Construction Manager shall prepare a detailed estimate with supporting data for review by the Architect and approval by the Owner During the preparation of the Design Development Documents (DD's), the Construction Manager shall provide an initial cost estimate at 60% DD's and update and refine this estimate when the Construction Documents (CD's) are fifty percent (50%) complete and again at ninety percent (90%) complete, and at any other appropriate intervals agreed to by the City, Architect and Construction Manager necessary to develop a GMP for the project. These cost estimate updates shall incorporate the latest design changes, alternate materials and processes as required to provide a Guaranteed Maximum Price that will meet the Owners stated project budget. Should the estimates of cost of the work exceed the latest approved project budget the Construction Manager shall inform the Owner and Architect and make recommendations for corrective action. 2.1.4.2 Subcontractors and Suppliers. The Construction Manager shall seek to develop subcontractor interest in the Project and shall furnish to the City and Architect for their information a list of possible subcontractors, including suppliers who are to furnish materials or equipment fabricated to a special design, from whom proposals will be requested for each principal portion of the Work. The Architect will promptly reply in writing to the Construction Manager if the Architect or City know of any objection to such subcontractor or supplier The receipt of such list shall not require the City or Architect to investigate the qualifications of proposed subcontractors or suppliers, nor shall it waive the right of the City or Architect later to object to or reject any proposed subcontractor or supplier 2.1.4.3 Long-Lead-Time Items. The Construction Manager shall recommend to the City and Architect a schedule for procurement of long-lead-time items which will constitute part of the Work as required to meet the Project schedule If such long-lead-time items are procured by the City, they shall be procured on terms and conditions acceptable to the Construction Manager Upon the City's acceptance of the Construction Manager's Guaranteed Maximum Price proposal, all contracts for such items shall be assigned by the City to the Construction Manager, who shall accept responsibility for such items as if procured by the Construction Manager The Construction Manager shall expedite the delivery of long-lead-time items. 2.1.4.4 Extent of Responsibility The Construction Manager does not warrant or guarantee estimates and schedules except as may be included as part of the Guaranteed Maximum Price The recommendations and advice of the Construction Manager concerning design alternatives shall be subject to the review and approval of the City and the City's professional consultants. It is not the Construction Manager's responsibility to ascertain that the Drawings and Specifications are in accordance with applicable laws, statutes, ordinances, building codes,rules and regulations However, if the Construction Manager recognizes that portions of the Drawings and Specifications are at variance therewith, the Construction Manager shall promptly notify the Architect and City in writing. 2.1.4.5 Equal Employment Opportunity and Affirmative Action. The Construction Manager shall comply with applicable laws, regulations and special requirements of the Contract Documents regarding equal employment opportunity and affirmative action programs. See attached Title VI Nondiscnmination Assurances attached hereto as ATTACHMENT 1 2_2 Guaranteed Maximum Price Proposal. 221 When the Drawings and Specifications are sufficiently complete, but in no case later than 90% Construction Documents, the Construction Manager shall propose a Guaranteed Maximum Pnce, which shall be the sum of the estimated Cost of the Work and the Construction Manager's Fee along with any identified Allowances as have been determined to be necessary Provided, however, Construction Manager understands such estimates are relied upon by the City in making various Project determinations, and, therefore, should Construction Manager's Guaranteed Maximum Price proposal exceed the City's applicable budget by more than 2 5%, all pre- construction services rendered thereafter to render the Project within 2 5% of the budget by Construction Manager shall be at its cost. 277 As the Drawings and Specifications may not be finished at the time the Guaranteed Maximum Price proposal is prepared, the Construction Manager shall provide in the Guaranteed Maximum Price for further development of the Drawings and Specifications by the Architect that is consistent with the Contract Documents and reasonably inferable therefrom. Such further development does not include such things as changes in scope, systems, kinds and quality of materials, finishes or equipment, all of which, if required, shall be incorporated by Change Order 223 The estimated Cost of the Work shall separately identify, the Construction Manager's Contingency, a sum not to exceed 2 5% percent of the Guaranteed Maximum Price, an amount established by the Owner for the Construction Manager's use, subject to Owner's approval, to cover costs arising under Paragraph 2.2.2 and other costs which are properly reimbursable as Cost of the Work but not the basis for a Change Order Upon Contractor's completion of the Project, all unused portions of the Construction Manager's Contingency and those from the Guaranteed Maximum Price shall be set aside as cost savings for the benefit of the Owner 2.2.3.1.1 Basis of Guaranteed Maximum Price The Construction Manager shall include with the Guaranteed Maximum Pnce proposal a written statement of its basis, which shall include (a) A list of the Drawings and Specifications,including all addenda thereto and the Conditions of the Contract, which were used in preparation of the Guaranteed Maximum Price proposal (b) A list of the clarifications and assumptions made by the Construction Manager in the preparation of the Guaranteed Maximum Price proposal to supplement the information contained in the Drawings and Specifications (c) The proposed Guaranteed Maximum Price, including a statement of the estimated cost organized by trade categones, contingency, and other items and the Fee that comprise the Guaranteed Maximum Price (d) The Date of Substantial Completion upon which the proposed Guaranteed Maximum Price is based, and a schedule of the Construction Documents issuance dates upon which the date of Substantial Completion is based. 2.2.3.2 The Construction Manager shall meet with the City and Architect to review the Guaranteed Maximum Price proposal and the written statement of its basis In the event that the City or Architect discover any inconsistencies or inaccuracies in the information presented,they shall promptly notify the Construction Manager, who shall make appropriate adjustments to the Guaranteed Maximum Price proposal, its basis, or both. This proposal shall provide the Owner no less than ten days to accept the GMP without invalidating the proposal or any of its terms 2.2.3.3 Unless the City accepts the Guaranteed Maximum Price proposal in writing on or before the date specified in the proposal for such acceptance and so notifies the Construction Manager, the Guaranteed Maximum Pnce proposal shall not be effective without written acceptance by the Construction Manager 2.2.3.4 Prior to the City's acceptance of the Construction Manager's Guaranteed Maximum Price proposal and issuance of a Notice to Proceed, the Construction Manager shall not incur any cost to be reimbursed as part of the Cost of the Work, except as the City may specifically authorize inwnting. 2.2.3.5 Upon acceptance by the City of the Guaranteed Maximum Price proposal, the Guaranteed Maximum Price and its basis shall be set forth in Amendment No 1 The Guaranteed Maximum Price shall be subject to additions and deductions by a change in the Work as provided in the Contract Documents, and the Date of Substantial Completion shall be subject to adjustment as provided in the Contract Documents 2.2.3.6 The City shall authorize and cause the Architect to revise the Drawings and Specifications to the extent necessary to reflect the agreed-upon assumptions and clarifications contained in Amendment No 1 Such revised Drawings and Specifications shall be furnished to the Construction Manager in accordance with schedules agreed to by the City, Architect and Construction Manager The Construction Manager shall promptly notify the Architect and City if such revised Drawings and Specifications are inconsistent with the agreed- upon assumptions and clarifications 2.3 Construction Phase. 23.1 General 2.3 1 1 The Construction Phase shall commence on. a) the City's acceptance of the Construction Manager's Guaranteed Maximum Price proposal and issuance of a Notice to Proceed, and b) the City's first authorization to the Construction Manager to 1 award a subcontract,or 2. undertake construction Work with the Construction Manager's own forces,or 3 issue a purchase order for materials or equipment required for the Work. 2.4 Administration. 241 Those portions of the Work that the Construction Manager does not customarily perform with the Construction Manager's own personnel shall be performed under subcontracts or by other appropriate agreements with the Construction Manager The Construction Manager shall obtain bids in accordance with the applicable requirements of Chapter 2269 of the Texas Government Code from Subcontractors and from suppliers of materials or equipment fabricated to a special design for the Work from the list previously reviewed and, after analyzing such bids, shall deliver such bids to the City and Architect. The City will then determine, with the advice of the Construction Manager, which bids will be accepted. The City may designate specific persons or entities from whom the Construction Manager shall obtain bids, however, if the Guaranteed Maximum Price has been established, the City may not prohibit the Construction Manager from obtaining bids from other qualified bidders The Construction Manager shall not be required to contract with anyone to whom the Construction Manager has reasonable objection. 242 If the Guaranteed Maximum Price has been established and a specific bidder among those whose bids are delivered by the Construction Manager to the City and Architect(1)is recommended to the City by the Construction Manager; (2) is qualified to perform that portion of the Work; and (3) has submitted a bid which conforms to the requirements of the Contract Documents without reservations or exceptions, but the City requires that another bid be accepted, then the Construction Manager may require that a change in the Work be issued to adjust the Contract Time and the Guaranteed Maximum Price by the difference between the bid of the person or entity recommended to the City by the Construction Manager and the amount of the subcontract or other agreement actually signed with the person or entity designated by the City 243 Subcontracts and agreements with suppliers furnishing materials or equipment fabricated to a special design shall conform to the payment provisions of Paragraphs 7 1 8 and 7 1 9 and shall not be awarded on the basis of cost plus a fee without the prior consent of the City 24.4 The Construction Manager shall schedule and conduct meetings with appropriate Subcontractors at which the City, Architect, Construction Manager and appropriate Subcontractors can discuss the status of the Work. The Construction Manager shall prepare and promptly distribute meeting minutes 245 Promptly after the City's acceptance of the Guaranteed Maximum Price proposal, the Construction Manager shall prepare a schedule in accordance with Paragraph 1511, General Conditions, including the Owner's occupancy requirements 246 The Construction Manager shall provide monthly written reports to the City and Architect on the progress of the entire Work. The Construction Manager shall maintain a daily log containing a record of weather, Subcontractors working on the site, number of workers,Work accomplished,problems encountered and other similar relevant data as the City may reasonably require The log shall be available to the City and Architect. The Construction Manager shall promptly inform City in writing of any circumstance or development that is likely to delay Substantial Completion of the Project in accordance with the schedule 24.7 The Construction Manager shall develop a system of cost control for the Work, including regular monitoring of actual costs for activities in progress and estimates for uncompleted tasks and proposed changes. The Construction Manager shall identify variances between actual and estimated costs and report the variances to the City and Architect at regular intervals. 24.8 Professional Services. Paragraph 1.5 14 10, General Conditions shall apply to both the Preconstruction and Construction Phase 249 Hazardous Materials Paragraph 1 12.3, General Conditions shall apply to both the Preconstruction and Construction Phases. SECTION 3 OWNER'SRESPONSIBILITIES. 31 Information and Services 3.1.1 The Owner shall provide information in a timely manner regarding the requirements of the Project, including a program which sets forth the City's objectives, constraints and criteria, including space requirements and relationships, flexibility and expandability requirements, special equipment and systems, and site requirements. 3.1.2 The City shall establish and update an overall budget for the Project, based on consultation with the Construction Manager and Architect, which shall include contingencies for changes in the Work and other costs which are the responsibility of the City 3.1.3 Structural and Environmental Tests, Surveys and Reports. In the Preconstruction Phase,the City shall furnish the following with reasonable promptness and at the City's expense Except to the extent that the Construction Manager knows of any inaccuracy, or should have reasonably discovered such error or inaccuracy, the Construction Manager shall be entitled to rely upon the accuracy of any such information, reports, surveys, drawings and tests described in Paragraphs 3 1.3 1 through 3 1 3 4 but shall exercise customary precautions relating to the performance of the Work. 3 1.3 1 Reports, surveys, drawings and tests concerning the conditions of the site which are required bylaw 3 1.3.2 Surveys describing physical characteristics, legal limitations and utility locations for the site of the Project, and a written legal description of the site 3 1.3.3 The services of a geotechnical engineer when such services are requested by the Construction Manager and are reasonably required by the scope of the Project, as determined by the City or Architect. Such services may include but are not limited to test borings, test pits, determinations of soil bearing values, percolation tests, evaluations of hazardous materials, ground corrosion and resistivity tests, including necessary operations for anticipating subsoil conditions, with reports and appropriate professional recommendations 3 1.3 4 Structural, mechanical, chemical, air and water pollution tests, tests for hazardous materials, and other laboratory and environmental tests, inspections and reports which are required bylaw 3 1.3.5 The services of other consultants when such services are reasonably required by the scope of the Project, as determined by the City or Architect, and are requested by the Construction Manager 32 Owner's Designated Representative The City shall designate in writing City's Representative who shall have express authority, subject to the limitations set forth in the General Conditions, to bind the City with respect to all matters requiring the City's approval or authorization. This City's Representative shall have the authority to make decisions on behalf of the City concerning estimates and schedules, construction budgets,and changes in the Work,and shall render such decisions promptly and furnish information expeditiously, so as to avoid unreasonable delay in the services or Work of the Construction Manager Except as otherwise provided in Paragraph 1 6.2.1, General Conditions,the Architect does not have such authonty 3.3 Architect. The City shall retain an Architect to provide Basic Services, including normal structural, mechanical and electrical engineering services. The City must authorize, in writing, and cause the Architect to provide additional service, requested by the Construction Manager which must necessarily be provided by the Architect for the Preconstruction and Construction Phases of the Work. Construction Manager has no authority to request services from the Architect on the City's behalf. Such services shall be provided in accordance with time schedules agreed to by the City, Architect and Construction Manager Upon request of the Construction Manager, the City shall furnish to the Construction Manager a copy of the City's Agreement with the Architect. SECTION 4 COMPENSATION AND PAYMENTS FOR PRECONSTRUCTION PHASE SERVICES The City shall compensate and make payments to the Construction Manager for Pre-construction Phase services as follows 4.1 Compensation 4 1 1For the services described in Paragraphs 2 1 and 2.2, the Construction Manager's compensation shall be calculated as follows Pre-Construction Fee $ 30,000 00 4 1 1 If compensation is based on a multiple of Direct Personnel Expense, Direct Personnel Expense is defined as the direct salaries of the Construction Manager's personnel engaged in the Project and the portion of the cost of their mandatory and customary contributions and benefits related thereto, such as employment taxes and other statutory employee benefits, insurance, sick leave,holidays, vacations, pensions and similar contributions and benefits. 4.2 Payments 4.2.1 Payments shall be made monthly following presentation of the Construction Manager's invoice and, where applicable, shall be in proportion to services performed. 4.2.2 Payments are due and payable thirty(30) calendar days from the date the correct and approved Construction Manager's invoice is received by the Owner 4.23 The City stipulates that it is an exempt organization as defined by the Limited Sales,Excise and Use Tax Act and, as such, is exempt from the payment of the sales tax on materials and supplies used in the performance of this Contract. The Construction Manager shall issue exemption certificates to its Subcontractors and suppliers in lieu of said sales tax for all such materials and supplies, complying with all applicable State Comptroller'sRulings. SECTION 5 COMPENSATION FOR CONSTRUCTION PHASE SERVICES The City shall compensate the Construction Manager for Construction Phase services as follows General Conditions $ 1,145,150 00 5.1 Compensation 5 1 1For the Construction Manager's performance of the Work as described in Paragraph 2 3, the City shall pay the Construction Manager in current funds the Contract Sum consisting of the Cost of the Work as defined in Paragraph 7 and the Construction Manager's Fee determined as follows Construction Manager At Risk Fee(as a Percentage). 3.0 5.2 Guaranteed Maximum Price. 5.2 1 The sum of the Cost of the Work and the Construction Manager's Fee for the Work are guaranteed by the Construction Manager not to exceed the amount provided in Amendment No 1, subject to additions and deductions by changes in the Work as provided in the Contract Documents Such maximum sum as adjusted by approved changes in the Work is referred to in the Contract Documents as the Guaranteed Maximum Price Costs which would cause the Guaranteed Maximum Price to be exceeded shall be paid by the Construction Manager without reimbursement by the City In the event the Cost of Work plus the Construction Manager's Fee is less than the Guaranteed Maximum Price ("GMP"),the savings shall accrue one hundred percent (100%)to the City 53 Changes in the Work. 53.1 Adjustments to the Guaranteed Maximum Price on account of changes in the Work subsequent to the execution of Amendment No 1 may be determined by any of the methods listed in Paragraph 1 9.2.2, General Conditions, subject to the limitations provided in the General Conditions. 53.1.1 In calculating adjustments to subcontracts (except those awarded with the Owner's prior consent on the basis of cost plus a fee), the terms "cost" and"fee" as used in Paragraph 1 9.2.2 (c), General Conditions and the term "costs" as used in Paragraph 1 9 3 6, General Conditions shall have the meanings assigned to them in the General Conditions and shall not be modified by this Paragraph 5 Adjustments to subcontracts awarded with the City's prior consent on the basis of cost plus a fee shall be calculated in accordance with the terms of those subcontracts. 53.12 In calculating adjustments to the Contract,the terms"cost"and"costs" as used in the above-referenced provisions of the General Conditions shall mean the Cost of the Work as defined in Paragraph 6 of this Agreement, and the term"and a reasonable allowance for overhead and profit"shall mean the Construction Manager's Fee as defined in Paragraph 5 1 1 of this Agreement. 53.13 If no specific provision is made in Paragraph 5 1 1 for adjustment of the Construction Manager's Fee in the case of changes in the Work, or if the extent of such changes is such, in the aggregate, that application of the adjustment provisions of Paragraph 5 1 1 will cause substantial inequity to the Owner or Construction Manager, the Construction Manager's Fee shall be equitably adjusted on the basis of the Fee established for the original Work. SECTION 6 COST OF THE WORK FOR CONSTRUCTION PHASE 6.1 Costs To Be Reimbursed. 6 1 1 The term "Cost of the Work" shall mean costs necessarily incurred by the Construction Manager in the proper performance of the Work. Such costs shall be at rates not higher than those customarily paid at the place of the Project except with prior consent of the City The Cost of the Work shall include only the items set forth in this Paragraph 6 6.1.1.1 Labor Costs 6.1.1.1.1 Wage Rates. Pursuant to Section 2258 023(a) of the Texas Government Code, wage rates paid by the Contractor and any subcontractor on this Project shall be not less than the general prevailing rate of per diem wages for work of a similar character in this locality as specified in the schedule of general prevailing rates of per diem wages attached hereto as ATTACHMENT 3 6.1.1.12 Statutory Penalty Pursuant to Section 2258 023(b) of the Texas Government Code, if the Contractor or any subcontractor violates the requirements of this section the Contractor or subcontractor as the case may be shall pay the City Sixty Dollars ($60.00) for each worker employed for each calendar day or part of the day that the worker is paid less than the stipulated wage rates 6.1.1.13 Wages of construction workers directly employed by the Construction Manager to perform the construction of the Work at the site or, with the Owner's agreement, at off-site workshops. 6.1.1.14 Wages or salaries of the Construction Manager's supervisory and administrative personnel when stationed at the site with the Owner's agreement. See attached Position/Rate table No. Description Rate 1 Project Executive $150.00 per hour 2 Project Manager $ 90 00 per hour 3 Estimator $ 90.00 per hour 4 Safety/Field Operation $ 85.00 per hour Manager 5 Lead Superintendent $ 90.00 per hour 6 Assistant Superintendent $ 80.00 per hour 7 Project Engineer $ 75 00 per hour 8 Quality Control Inspector $ 90 00 per hour 9 Contract Administrator $ 75 00 per hour 10 BIM Coordinator $ 95 00 per hour 11 IT Coordinator $ N/A per hour 12 Labor Burden 6.1.1.15 Wages and salaries of the Construction Manager's supervisory or, administrative personnel engaged, at factories, workshops or on the road, in expediting the production or transportation of materials or equipment required for the Work, but only for that portion of their time required for the Work. Further, the time for performance does not necessitate overtime work and the City shall not be required to reimburse the "premium time" portion of any overtime payments by Contractor, unless otherwise approved, in writing, in advance by the City 6.1.1.1.6 Costs paid or incurred by the Construction Manager for taxes, insurance, contributions, assessments and benefits required by law or collective bargaining agreements, and, for personnel not covered by such agreements, customary benefits such as sick leave,medical and health benefits,holidays,vacations and pensions, provided that such costs are based on wages and salaries included in the Cost of the Work under Paragraphs 6 1 1 1 1 through 6 1 1 1 4 6.1.1.1.7 Subcontract Costs Payments made by the Construction Manager to Subcontractors in accordance with the requirements of the subcontracts. 6.1.1.1.8 Costs of Matenals and Equipment Incorporated in the Completed Construction. (a) Costs, including transportation, of materials and equipment incorporated or to be incorporated in the completed construction. (b) Costs of materials described in the preceding Paragraph 6 1 4 (a)in excess of those actually installed but required to provide reasonable allowance for waste and for spoilage Unused excess materials, if any, shall be handed over to the City at the completion of the Work or, at the City's option, shall be sold by the Construction Manager; amounts realized, if any, from such sales shall be credited to the City as a deduction from the Cost of the Work. 6.1.1.19 Costs of Other Materials and Equipment, Temporary Facilities and Related Items. (a) Costs, including transportation, installation, maintenance, dismantling and removal of materials, supplies, temporary facilities, machinery, equipment, and hand tools not customarily owned by the construction workers, which are provided by the Construction Manager at the site and fully consumed in the performance of the Work; and cost less salvage value on such items if not fully consumed,whether sold to others or retained by the Construction Manager Cost for items previously used by the Construction Manager shall mean fair market value. (b) Rental charges for temporary facilities, machinery, equipment and hand tools not customarily owned by the construction workers, which are provided by the Construction Manager at the site,whether rented from the Construction Manager or others, and costs of transportation, installation, minor repairs and replacements, dismantling and removal thereof. Rates and quantities of equipment rented shall be subject to the City's prior approval. (c) Costs of removal of debris from the site (d) Reproduction costs,costs of telegrams,facsimile transmissions and long-distance telephone calls, postage and express delivery charges, telephone at the site and reasonable petty cash expenses of the site office. (e) That portion of the reasonable travel and subsistence expenses of the Construction Manager's personnel incurred while traveling in discharge of duties connected with the Work. 6.1.1.1.10 Miscellaneous Costs (a) That portion directly attributable to this Contract of premiums for insurance and bonds. (b) Fees, assessments, permits, licenses and inspections for which the Construction Manager is required by the Contract Documents to pay (c) Fees of testing laboratories for tests required by the Contract Documents, except those related to nonconforming Work other than that for which payment is permitted by Paragraph 6 1 8 (d) Royalties and license fees paid for the use of a particular design, process or product required by the Contract Documents, the cost of defending suits or claims for infringement of patent or other intellectual property rights arising from such requirement by the Contract Documents, payments made in accordance with legal judgments against the Construction Manager resulting from such suits or claims and payments of settlements made with the City's consent; provided,however, that such costs of legal defenses,judgment and settlements shall not be included in the calculation of the Construction Manager's Fee or the Guaranteed Maximum Price and provided that such royalties, fees and costs are not excluded by the last sentence of Paragraph 1.5 19 1, General Conditions or other provisions of the Contract Documents. (e) Data processing costs related to the Work. (f) Deposits lost for causes other than the Construction Manager's negligence or failure to fulfill a specific responsibility to the City set forth in this Agreement. 6.1.1.1.11 Other Costs. Other costs incurred in the performance of the Work if and to the extent approved in advance in writing by the City The costs described in Paragraphs 6 1 1 1 through 6 1 1 11 shall be included in the Cost of the Work notwithstanding any provision of General Conditions of the Contract which may require the Construction Manager to pay such costs, unless such costs are excluded by the provisions of Paragraph 6.2. 6.2 Costs Not To Be Reimbursed. 6.2.1.1 The Cost of the Work shall not include (a) Salaries and other compensation of the Construction Manager's personnel stationed at the Construction Manager's principal office or offices other than the site office, except as specifically provided in Paragraphs 6 1.2 1 and 6 1.2.2 (b) Expenses of the Construction Manager's principal office and offices other than the site office, except as specifically provided in Paragraph 6 1 (c) Overhead and general expenses, except as may be expressly included in Paragraph 6 1 (d) The Construction Manager's capital expenses, including interest on the Construction Manager's capital employed for the Work. (e) Rental costs of machinery and equipment, except as specifically provided in Paragraph 6 1.5(b) (fl Costs due to the negligence of the Construction Manager or to the failure of the Construction Manger to fulfill a specific responsibility to the City set forth in this Agreement. (g) Costs incurred in the performance of Preconstruction Phase Services. (h) Except as provided in Paragraph 6 1 7, any cost not specifically and expressly described in Paragraph 6 1 (i) Costs which would cause the Guaranteed Maximum Price to be exceeded. 6.3 Discounts, Rebates and Refunds 6.3.1.1 Cash discounts obtained on payments made by the ConstructionManager shall accrue to the City if(1)before making the payment,the Construction Manager included them in an Application for Payment and received payment therefor from the City, or (2) the City has deposited funds with the Construction Manager with which to make payments, otherwise, cash discounts shall accrue to the Construction Manager Trade discounts,rebates,refunds and amounts received from sales of surplus materials and equipment shall accrue to the City, and the Construction Manager shall make provisions so that they can be secured. 6.3.1.2 Amounts which accrue to the City in accordance with the provisions of Paragraph 6 3 1 shall be credited to the City as a deduction from the Cost of the Work. 6_4 Accounting Records 6.4.1.1 The Construction Manager shall keep full and detailed accounts and exercise such controls as may be necessary for proper financial management under this Contract; the accounting and control systems shall be satisfactory to the City The City and the City's accountants shall be afforded access to the Construction Manager's records, books, correspondence, instructions, drawings, receipts, subcontracts, purchase orders, vouchers, memoranda and other data relating to this Project, and the Construction Manager shall preserve these for a period of three years after final payment, or for such longer period as may be required by law SECTION 7 PAYMENT 7_1 Progress Payments 71.1 Based upon Applications for Payment submitted to the Architect by the Construction Manager, in a form acceptable to City and the Architect, and Certificates for Payment issued by the Architect, the City shall make progress payments on account of the Contract Sum to the Construction Manager as provided below and elsewhere in the Contract Documents 7.1.1.1 The period covered by each Application for Payment shall be one calendar month ending on the last day of themonth. 7.1.1.2 Provided an Application for Payment is received by the Architect not later than 'the 30th day of a month, the City shall make payment to the Construction Manager not later than the 30th day of the following month. If an Application for Payment is received by the Architect after the application date fixed above, payment shall be made by the City not later than thirty(30) days after the Architect receives the Application for Payment. 7.1.1.3 With each Application for Payment, the Construction Manager shall submit payrolls, petty cash accounts, receipted invoices or invoices with check vouchers attached and any other evidence required by the City or Architect to demonstrate that cash disbursements already made by the Construction Manager on account of the Cost of the Work equal or exceed (1) progress payments already received by the Construction Manager; less (2) that portion of those payments attributable to the Construction Manager's Fee;plus (3)payrolls for the period covered by the present Application for Payment. 7.1.1.4 Each Application for Payment shall be based upon the most recent schedule of values submitted by the Construction Manager in accordance with the Contract Documents The schedule of values shall allocate the entire Guaranteed Maximum Price among the various portions of the Work, except that the Construction Manager's Fee shall be shown as a single separate item. The schedule of values shall be prepared in such form and supported by such data to substantiate its accuracy as the City and Architect may require This schedule, unless objected to by the City or Architect, shall be used as a basis for reviewing the Construction Manager's Applications for Payment. 7.1.1.5 Applications for Payment shall show the percentage completion of each portion of the Work as of the end of the period covered by the Application for Payment. The percentage completion shall be the lesser of(1) the percentage of that portion of the Work which has actually been completed or(2)the percentage obtained by dividing(a)the expense which has actually been incurred by the Construction Manager on account of that portion of the Work for which the Construction Manager has made or intends to make actual payment prior to the next Application for Payment by (b) the share of the Guaranteed Maximum Price allocated to that portion of the Work in the schedule ofvalues. 7.1.1.6 Subject to other provisions of the Contract Documents, the amount of each progress payment shall be computed as follows (a) Take that portion of the Guaranteed Maximum Price properly allocable to completed Work as determined by multiplying the percentage completion of each portion of the Work by the share of the Guaranteed Maximum Price allocated to that portion of the Work in the schedule of values. Pending final determination of cost to the City of changes in the Work, amounts not in dispute maybe included as provided in Paragraph 1 9.3 7, General Conditions, even though the Guaranteed Maximum Price has not yet been adjusted by Change Order (b) Add that portion of the Guaranteed Maximum Price properly allocable to materials and equipment delivered and suitably stored at the site for subsequent incorporation in the Work or, if approved in advance by the City, suitably stored off the site at a location agreed upon in writing. (c) Add the Construction Manager's Fee, less retainage of (i) ten percent (10%) where the GMP is less than $400,000, or (ii) five percent (5%) where the GMP is $400,000 or more. The Construction Manager's Fee shall be computed upon the Cost of the Work described in the two preceding Paragraphs at the rate stated in Paragraph 5 1 1 or, if the Construction Manager's Fee is stated as a fixed sum in that Paragraph, shall be an amount which bears the same ratio to that fixed-sum Fee as the Cost of the Work in the two preceding Paragraphs bears to a reasonable estimate of the probable Cost of the Work upon its completion. (d) Subtract the aggregate of previous payments made by the City (e) Subtract the shortfall, if any, indicated by the Construction Manager in the documentation required by Paragraph 7 1 4 to substantiate prior Applications for Payment, or resulting from errors subsequently discovered by the City's accountants in such documentation. (t) Subtract amounts, if any, for which the Architect has withheld or nullified a Certificate for Payment as provided in Paragraph 1 11.5, General Conditions 7.1.1.7 Except with the City's prior approval, payments to Subcontractors shall be subject to retention of not less than five percent (5%) The City and the Construction Manager shall agree upon a mutually acceptable procedure for review and approval of payments and retention for subcontracts. 7.1.1.8 Except with the City's prior approval, the Construction Manager shall not make advance payments to suppliers for materials or equipment which have not been delivered and stored at the site 7.1.1.9 In taking action on the Construction Manager's Applications for Payment, the Architect shall be entitled to rely on the accuracy and completeness of the information furnished by the Construction Manager and shall not be deemed to represent that the Architect has made a detailed examination, audit or arithmetic verification of the documentation submitted in accordance with Paragraph 7 1 4 or other supporting data, that the Architect has made exhaustive or continuous on-site inspections or that the Architect has made examinations to ascertain how or for what purposes the Construction Manager has used amounts previously paid on account of the Contract. Such examinations, audits and verifications, if required by the City, will be performed by the City's accountants acting in the sole interest of the City 7.1.2 Final Payment. 7.1.2.1 Final payment shall be made by the City to the Construction Manager when (1) the Contract has been fully performed by the Construction Manager except for the Construction Manager's responsibility to correct punch list items or nonconforming Work, as provided in Paragraph 1 14.2.2, General Conditions, and to satisfy other requirements, if any, which necessarily survive final payment; (2) a final Application for Payment and a final accounting for the Cost of the Work have been submitted by the Construction Manager and reviewed by the City's accountants, and(3)a final Certificate for Payment has then been issued by the Architect; such final payment shall be made by the City not more than 30 days after the issuance of the Architect's final Certificate for Payment, or as follows 7.1.2.2 The amount of the final payment shall be calculated as follows (a) Take the sum of the Cost of the Work substantiated by the Construction Manager's final accounting and the Construction Manager's Fee, but not more than the Guaranteed Maximum Price. (b) Subtract amounts, if any, for which the Architect withholds or the City is entitled to withhold under this Agreement, in whole or in part, a final Certificate for Payment as provided in Paragraph 1 11 5 1, General Conditions or other provisions of the Contract Documents. (c) Subtract the aggregate of previous payments made by the Owner If the aggregate of previous payments made by the City exceeds the amount due the Construction Manager, the Construction Manager shall reimburse the difference to the City If the aggregate of previous payments made by the City exceeds the amount due the Construction Manager, the Construction Manager shall reimburse the difference to the City 7.1.2.3 The City's accountants will review and report in writing on the Construction Manager's final accounting within 30 days after delivery of the final accounting to the Architect by the Construction Manager, together with all backup documentation reasonably required by the City Based upon such Cost of the Work as the City's accountants report to be substantiated by the Construction Manager's final accounting, and provided the other conditions of Paragraph 7.2 1 have been met, the Architect will, within seven days after receipt of the written report of the Owner's accountants, either issue to the City a final Certificate for Payment with a copy to the Construction Manager or notify the Construction Manager and Owner in writing of the Architect's reasons for withholding a certificate as provided in Paragraph 1 11 5 1, General Conditions. The time periods stated in this Paragraph 7.2 supersede those stated in Paragraph 1 11 4 1, General Conditions. 7.1.2.4 If the City's accountants report the Cost of the Work as substantiated by the Construction Manager's final accounting to be less than claimed by the Construction Manager, the Construction Manager shall be entitled to proceed in accordance with Paragraph 8 without a further decision of the Architect. Unless agreed to otherwise, a demand for mediation of the disputed amount shall be made by the Construction Manager within 30 days after the Construction Manager's receipt of a copy of the Architect's final Certificate for Payment. Failure to make such demand within this 30-day penod shall result in the substantiated amount reported by the City's accountants becoming binding on the Construction Manager Pending a final resolution of the disputed amount, the City shall pay the Construction Manager the amount certified in the Architect's final Certificate for Payment. 7.1.2.5 If, subsequent to final payment and at the City's request, the Construction Manager incurs costs described in Paragraph 6 1 and not excluded by Paragraph 6.2 (1) to correct nonconforming Work or (2) arising from the resolution of disputes, the City shall reimburse the Construction Manager such costs and the Construction Manager's Fee, if any,related thereto on the same basis as if such costs had been incurred prior to final payment, but not in excess of the Guaranteed Maximum Price. If the Construction Manager has participated in savings, the amount of such savings shall be recalculated and appropriate credit given to the City in determining the net amount to be paid by the City to the Construction Manager SECTION 8 MISCELLANEOUS PROVISIONS 8_1 Dispute Resolution 8 1 1 During both the Preconstruction and Construction Phases, claims, disputes or other matters in question between the parties to this Agreement shall be resolved as provided in Paragraph 1 6 3 , General Conditions, except that, during the Preconstruction Phase, no decision by the Architect shall be a condition precedent to mediation. 8.2 Other Provisions 8.2.1.1 Extent of Contract. This Contract, which includes this Agreement and the other documents incorporated herein by reference, represents the entire and integrated agreement between the City and the Construction Manager and supersedes all prior negotiations, representations or agreements, either written or oral. This Agreement may be amended only by written instrument signed by both the City and Construction Manager If anything in any document incorporated into this Agreement is inconsistent with this Agreement,this Agreement shall govern. 8.2.1.2 Ownership and Use of Documents Paragraph 1.3 4, General Conditions, shall apply to both the Preconstruction and Construction Phases 8.2.1.3 Governing Law The Contract shall be governed by the laws of the State of Texas. Performance and all matters related thereto shall be in Brazoria County, Texas, United States of America. 8.2.1.4 Assignment. The City and Construction Manager respectively bind themselves, their partners, successors, assigns and legal representatives to the other party hereto and to partners, successors, assigns and legal representatives of such other party in respect to covenants, agreements and obligations contained in the Contract Documents Neither party to the Contract shall assign the Contract as a whole without written consent of the other If either party attempts to make such an assignment without such consent, that party shall nevertheless remain legally responsible for all obligations under the Contract. SECTION 9 TERMINATION OR SUSPENSION 9_1Termination Prior To Establishing Guaranteed MaximumPrice 9.1.1 Prior to execution by both parties of Amendment No 1 establishing the Guaranteed Maximum Price, the City may terminate this Contract at any time without cause, and the Construction Manager may terminate this Contract for any of the reasons described in Paragraph 1 16 1 1, General Conditions 9 1 1 1 If the City or Construction Manager terminates this Contract pursuant to Paragraph 9 1 prior to commencement of the Construction Phase, the Construction Manager shall be equitably compensated for Preconstruction Phase Services performed prior to receipt of notice of termination, provided, however, that the compensation for such services shall not exceed the compensation set forth in Paragraph 4 1 1 9 1 1.2 If the City or Construction Manager terminates this Contract pursuant to Paragraph 9 1 after commencement of the Construction Phase, the Construction Manager shall be paid, in addition to the compensation provided in Paragraph 9 1.2,an amount calculated as follows (a) Take the Cost of the Work incurred by the Construction Manager (b) Add the Construction Manager's Fee computed upon the Cost of the Work to the date of termination at the rate stated in Paragraph 5 1 or, if the Construction Manager's Fee is stated as a fixed sum in that Paragraph, an amount which bears the same ratio to that fixed-sum Fee as the Cost of the Work at the time of termination bears to a reasonable estimate of the probable Cost of the Work upon its completion. (c) Subtract the aggregate of previous payments made by the City on account of the Construction Phase The City shall also pay the Construction Manager fair compensation, either by purchase or rental at the election of the City, for any equipment owned by the Construction Manager which the City elects to retain and which is not otherwise included in the Cost of the Work under Paragraph 9 1 3 (a) To the extent that the City elects to take legal assignment of subcontracts and purchase orders (including rental agreements), the Construction Manager shall,as a condition of receiving the payments referred to in Paragraph 9,execute and deliver all such papers and take all such steps, including the legal assignment of such subcontracts and other contractual rights of the Construction Manager, as the City may require for the purpose of fully vesting in the City the rights and benefits of the Construction Manager under such subcontracts or purchase orders Subcontracts, purchase orders and rental agreements entered into by the Construction Manager with the City's written approval prior to the execution of Amendment No 1 shall contain provisions permitting assignment to the City as described above If the City accepts such assignment,the City shall reimburse the Construction Manager with respect to all valid and properly payable costs arising under the subcontract,purchase order or rental agreement except those which would not have been reimbursable as Cost of the Work if the contract had not been terminated. If the City elects not to accept the assignment of any subcontract, purchase order or rental agreement which would have constituted a Cost of the Work had this agreement not been terminated, the Construction Manager shall terminate such subcontract, purchase order or rental agreement and the City shall pay the Construction Manager the costs necessarily and reasonably incurred by the Construction Manager by reason of such termination, but in no event to include any overhead or profit on work not performed. 9.12 Termination Subsequent to Establishing Guaranteed Maximum Price. Subsequent to execution by both parties of Amendment No 1, the Contract may be terminated as provided in Paragraph 1 16,General Conditions. 9 1.2.1 In the event of such termination by the Owner, the amount payable to the Construction Manager pursuant to Paragraph 1 16 1.3, General Conditions shall not exceed the amount the Construction Manager would have been entitled to receive pursuant to Paragraphs 9 1.2 and 9 1 3 of this Agreement. 9.2.2 In the event of such termination by the Construction Manager, the amount to be paid to the Construction Manager under Paragraph 1 16 1.3, General Conditions shall not exceed the amount the Construction Manager would have been entitled to receive under Paragraphs 9 1.2 and 9 1.3 above. In no event shall Construction Manager nor any supplier or subcontractor be entitled to any fee or lost profits for work not performed. 9.3 Susnension The Work may be suspended by the City as provided in Paragraph 1 16, General Conditions, in such case, the Guaranteed Maximum Price, if established, shall be increased as provided in Paragraph 1 16.3.2, General Conditions, except that the term "cost of performance of the Contract" in that Paragraph shall be understood to mean the Cost of the Work and the term "profit"shall be understood to mean the Construction Manager's Fee as described in Paragraphs 5 1 1 and 5.3 4 of this Agreement. SECTION 10 OTHER CONDITIONS AND SERVICES 10 1 Construction Manager represents to the City that it has, and will keep in effect at all times during the term of this Contract, any licenses, permits, and approvals which are legally required for the Construction Manager to practice its trade 101 1 Authority to do business The Construction Manager represents that it has a certificate of authority authorizing it to do business in the State of Texas, a registered agent and registered office during the duration of this Contract. 10 1.2 Authority to Contract. Each party has the full power and authority to enter into and perform this Agreement, and the person signing this Agreement on behalf of each party has been properly authorized and empowered to enter into this Agreement. The persons executing this Agreement hereby represent that they have authorization to sign on behalf of their respective corporations. 10.1.3 Severability In case any one or more of the provisions contained in this Contract shall for any reason be held to be invalid,illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provision herein and this Contract shall be construed as if such invalid, illegal, or unenforceable provision had never been contained herein. 10 14 Presumption Against Waiver No waiver by either party hereto of any one or more defaults by the other partyhereto in the performance of this Contract shall be construed as a waiver of any future defaults whether of a like or different character 10 1 5 Owner's Reserved Rights. The City shall have the rights by its officers, employees or agents to examine and inspect the Construction Manager's Work at any time to venfy Construction Manager's compliance with the terms of this Contract. Any approval by City or acceptance of Construction Manager's Work shall not waive any obligation of Construction Manager to correct defective work. 101.6 Benefit. This Contract shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns where permitted by Contract. Nothing in this Paragraph shall be construed to waive the conditions elsewhere contained in this Contract applicable to assignment by the Construction Manager Nothing contained in this Contract shall be construed to confer any benefit upon any subcontractor or any other third party 1017 Headings.Gender,Number The headings are used in this Agreement for convenience and reference purposes only and are not intended to define, limit, or describe the scope or intent of any provision of this Agreement and shall have no meaning or effect upon its interpretation. Words of any gender used in this Agreement shall be held and construed to include any other gender, and words in the singular number shall be held to include the plural, and vice versa, unless the context requires otherwise 101.8 Agreement Read. The parties acknowledge that they have had opportunity to consult with counsel of their choice,have read,understand and intend to be bound by the terms and conditions of this Agreement. 101.9 Liquidated Damages The amount of liquidated damages for the Construction Manager's failure to meet the deadlines for Substantial and/or Final Completion are fixed and agreed on by the Construction Manager because of the impracticability and extreme difficulty in fixing and ascertaining the actual damages that the City would in such an event sustain. The amounts to be charged are agreed to be damages the City would sustain and shall be retained by the City from current periodic estimates for payment or from final payment. As a result of the difficulty in estimation, calculation and ascertainment of City's damages due to a failure of Construction Manager to achieve timely completion of the Work, if the Construction Manager should neglect, fail, or refuse to either Substantially Complete or Finally Complete the Work within the time herein specified, or any proper extension thereof granted by the City's Representative pursuant to the terms of the Contract Documents, then the Construction Manager does hereby agree as part of the consideration for the awarding of this Agreement that the Owner may permanently withhold from the Construction Manager's total compensation the sum of One Thousand Five Hundred and no /100 DOLLARS ($ 1,500.00) for each and every calendar day that the Construction Manager shall be in default after the time stipulated for Substantial Completion not as a penalty, but as liquidated damages for the breach of this Agreement. It being specifically understood that the assessment of liquidated damages may be made for any failure to meet either or both of the deadlines specified for Substantial Completion and/or Final Completion. 101 10 Final Completion Contractor shall achieve Final Completion within 30 calendar days of the date of Substantial Completion,failing which, Contractor shall provide a full time on site superintendent until Final Completion at its own cost and not as a cost of the Work. 101 11 Verification No Boycott Israel To the extent this Contract is considered a contract for goods or services subject to § 2270 002 Texas Government Code, Contractor verifies that it i) does not boycott Israel, and ii) will not boycott Israel during the term of this Contract. List of ATTACHMENTS 1 Owner's Insurance Requirements of Contractor 2 Special Conditions of the Contract 3 Wage Rate finding for Building Construction In Brazoria County 4 Appendix A Title VI Assurances 5 House Bill 89 Verification 6 Form 1295 Certificate of Interested Parties List of Exhibits A Contractor's Insurance Certificates B Performance Bond C Payment Bond D Maintenance Bond E Billing Rate Schedule CO ` CITY By. Printed Name. ogue City Manager /� Date: /Z 16/2„3 Title: Senior Vice President / Date: U`0/��-3 APPROVED- APPR�-VED- 1/44.4 ary City ecretary I Date: g ✓�1 C,0 Date: 0a13 ,t�Av vu��., JENNIFER SHYLAN CADMUS .i:'`P °`l;Notary Public,State of Texas ?* � *I My Commission Expires I .;r,, 4,1 December 17,2024 °°`" NOTARY ID 1166200-6 74